1

Comment Summary and Response Document

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes; Disposal of 

Coal Combustion Residuals from Electric Utilities; 

Proposed Rule

(Docket # EPA-HQ-RCRA-2009-0640)

Volume 2: RCRA Subtitle D Regulatory Approach

Legal Issues/Self-implementing Design/Reliance on Certification by an 

Independent Professional Engineer/Recordkeeping, State Submission, 

Posting to the Internet/Finance Assurance/Alternative Approaches

December 2014
2

Background

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

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

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

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

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

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

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

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

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

determination in place and regulate the disposal of CCR as non-hazardous solid waste under 

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

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

and closure/post closure care. 

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

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

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

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

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

EPA-HQ-RCRA-2009-0640; EPA-HQ-2011-0392; and EPA-HQ-RCRA-2012-0028. All of 

these dockets can be accessed through regulations.gov.

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

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

addresses the risks from structural 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 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 
3

subtitle C rule that are also applicable to the final rule are addressed in the comment and 

response documents.

Volume Topic

1 General Comments 

2

RCRA Subtitle D Regulatory Approach (Legal issues/Self-implementing 

Design/Reliance on Certifications by an Independent Professional 

Engineer/Recordkeeping, State Submissions, Posting to the 

Internet/Finance Assurance/Alternative Approaches) 

3

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

Disposal/Definitions 

4 Location Restrictions 

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity 

7

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

Run-off 

8 Operating Criteria: Air Criteria 

9 Groundwater and Corrective Action 

10 Closure and Post-Closure Care 

11 Additional Comments including Overfills/ Harmonization with ELG. 

12 Beneficial Use 

13 Risk Assessment 

14 State Authorities, Programs and Regulations 

15 Compendium of Damage Cases 

16 Regulatory Impact Analysis (RIA) 

17 EPA’s Assessment Program 

This volume addresses comments received on the RCRA subtitle D regulatory approach 

including: legal issues; self-implementing design; reliance on certification by an independent 

professional engineer; recordkeeping, state submission, posting to the internet; financial
4

assurance; and alternative approaches. Detailed responses to these comments can be found in the 

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

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

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

CommentWorks® Issue Report

Initiative: Coal Combustion Residuals Proposed Rule 

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Number of Issues: 47

Section 2 - Legal Issues

No comments are associated with this issue.

Section 2.1 - Statutory Authority for Proposed Rule (35134-35135)

Total Number of Submissions: 1

Total Number of Comments: 1

Comment Number: EPA-HQ-RCRA-2009-0640-07680-1

Organization1:Honigman Miller Schwartz and Cohn LLP on behalf of Lansing Board of 

Water and Light (LBWL) and Michigan State University (MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

No federal regulation or oversight of CCR disposal is necessary or appropriate in states, such as 

Michigan, that currently regulate the disposal and use of CCRs in a manner that is protective of 
6

human health and the environment.

Response: The Agency acknowledges and appreciates this comment.

Section 2.1.1 - RCRA Subtitle C authority (35135-35136)

Total Number of Submissions: 43

Total Number of Comments: 69

Comment Number: EPA-HQ-RCRA-2009-0640-06226-3

Organization1:Pennsylvania Coal Association (PCA)

Commenter1:Josie Gaskey

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has failed to follow the mandatory statutory process for revising RCRA Subtitle C.

When EPA proposed hazardous waste regulations under RCRA Subtitle C in 1978, Congress 

stepped in with the Bevill Amendment which recognized the lack of rationale in regulating CCRs 

and established a special process which EPA is required to follow before CCRs and other special 

wastes can be regulated under RCRA Subtitle C. Congress directed EPA to develop a one-time 

report, study and regulatory determination for CCRs and with the issuance of the 2000 

Regulatory Determination, the Bevill process was completed. This was further confirmed by the 

D.C. Circuit court in Solite Corp. v EPA. [Footnote 1: 952 F. 2d. 473 (D.D. Cir. 1991).] Before 

the EPA may propose a rule to regulate CCRs under RCRA Subtitle C, it must:

Study CCRs based on the eight study factors required under a Bevill analysis,

Submit a report to Congress on the findings of the study,

Conduct public hearings and provide an opportunity for comment on the report, and 

Determine whether to promulgate regulations under Subtitle C or determine that the regulations 

aren't necessary. [Footnote 2: Solid Waste Disposal Act §3001, 42 USC §6921(b)(3)(C)] 

Because EPA has not completed the mandatory statutory process, they cannot regulate CCRs 

under RCRA Subtitle C.

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

Bevill determination and as such comments on the mandatory statutory process are premature 

and outside the scope of today’s rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06252-2

Organization1:Minnkota Power Cooperative, Inc. (Minnkota)

Commenter1:John T. Graves
7

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Minnkota is a member of the National Rural Electric Cooperative Association (NRECA) and we 

agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is 

arbitrary and capricious and in direct contravention of the Bevill Amendment. 

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

directed to the discussion in Unit IV of the CCR preamble where EPA discusses its decision to 

defer its Bevill determination and promulgate a subtitle D rule for the disposal of CCR in surface 

impoundments and landfills.

Comment Number: EPA-HQ-RCRA-2009-0640-06252-6

Organization1:Minnkota Power Cooperative, Inc. (Minnkota)

Commenter1:John T. Graves

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations for CCRs 

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C. Even setting aside EPA's failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal's Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06254-4

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
8

Comment Excerpt Text:

Sunflower Electric is a member of the National Rural Electric Cooperative Association 

(NRECA) and we agree with NRECA’s position that EPA’s proposal to regulate CCRs under 

Subtitle C of RCRA is arbitrary and capricious and in direct contravention of the Bevill 

Amendment. 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06254-8

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations For CCRs 

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

Response: In that the Agency has decided to defer its Bevill determination at this time, the 

subject of the proper process for making a final Bevill determination is outside the scope of this 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06275-2

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:
9

RCRA’s existing statutory structure is not appropriate for regulating CCRs at the federal level 

and EPA should defer any action unless and until Congress amends RCRA to provide specific 

authority for EPA to regulate CCR disposal.

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

Comment Number: EPA-HQ-RCRA-2009-0640-06275-24

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

To The Extent That EPA Determines CCRs Warrant Federal Regulation, Congress Should 

Amend RCRA To Provide EPA With The Appropriate Tools For Promulgating And Enforcing 

Such Regulations.

The preceding section of these Comments demonstrates that the Michigan Legislature enacted a 

comprehensive statutory scheme governing the use and disposal of CCRs in Michigan. This 

statutory scheme authorized MDNRE to promulgate regulations that are tailored to CCRs and 

that ensure CCRs are either used in an environmentally safe manner, or disposed of in landfills 

that comply with appropriate location, design, construction, and operating requirements. The 

United States Congress, however, did not grant to EPA similar regulatory authority over CCRs in 

RCRA. Accordingly, EPA’s current proposal attempts to fit the “square peg” of CCRs into the 

“round holes” of either Subtitle D or Subtitle C of RCRA. Neither option provides a good fit.

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

Comment Number: EPA-HQ-RCRA-2009-0640-06275-27

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
10

Other Sections: 2.1.2

Comment Excerpt Text:

LBWL and MSU believe that, instead of EPA’s current effort to force CCR regulations into an 

ill-fitting statutory structure, EPA should allow Congress to address this issue and, if appropriate, 

amend RCRA to provide EPA with the express authority to achieve its regulatory objectives. 

LBWL and MSU concur with the following statement from the Congressional Research Service 

contained in its September 21, 2010 report (attached as Exhibit H) concerning Congress’s 

legislative options concerning CCR regulations: [Footnote 36: Congressional Research Service, 

Regulating Coal Combustion Residuals: Issues for Congress] 

Members of Congress have several legislative options to address concerns expressed by [EPA, 

environmental groups, and industry]. Congress may choose to direct EPA to leave the Bevill 

exemption in place and continue to exempt the material from regulation as hazardous waste. This 

may be problematic in that the original amendment directed EPA to hold the exemption pending 

a report to Congress on various factors regarding the waste’s volume, disposal, and actual harm 

and potential risks associated with its disposal. For the past 30 years, EPA has been gathering 

that information and has determined that improper management poses significant risks to human 

health and the environment and that those risks could be minimized through some form of 

national regulation. Instead of (or in addition to) prohibiting EPA from regulating the waste 

under Subtitle C, Congress could choose to give EPA additional authority to regulate it under 

Subtitle D. It may specifically direct EPA to establish waste management criteria under Subtitle 

D applicable to solid waste management facilities that receive CCW. Such provisions could 

potentially draw from the existing distinction between an “open dump” and a “sanitary landfill” 

(a facility from which there is no reasonable probability of adverse effects on health or the 

environment from disposal of solid waste). Similar to the HSWA amendments that authorized 

EPA to establish criteria applicable to MSW landfills, Congress could specifically authorize EPA 

to revise existing solid waste management criteria to include standards applicable to landfills and 

surface impoundments that accept coal combustion wastes. Further, Congress could require 

states to adopt a permit program to assure that coal combustion waste management facilities 

within the state meet EPA’s management criteria.

Congress could also choose to create a new subtitle under RCRA (a Subtitle K) that would 

specifically address issues unique to the management of CCW. Such a proposal could include a 

number of legislative provisions, but, broadly, could direct EPA to develop waste management 

standards applicable to disposal units that accept CCW (similar to Subtitle D), but also provide 

EPA with federal enforcement authority to require states to implement those standards (similar to 

Subtitle C) while avoiding labeling the material a “hazardous” waste. Such a proposal could also 

authorize EPA to specifically regulate certain beneficial uses (such as construction fill).

Congress may also choose to do nothing. That is, Congress may allow the current rulemaking 

process to continue and allow EPA to select either its Subtitle C- or D-related proposal.

Response: The commenter is referred to Unit V of the preamble for a discussion of these 

points.
11

Comment Number: EPA-HQ-RCRA-2009-0640-06275-43

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

Neither Subtitle C nor Subtitle D of RCRA provides the proper framework for appropriate 

federal regulation of CCRs and EPA should defer the promulgation of such regulations until 

Congress can review this issue and, if necessary, amend RCRA to expressly authorize EPA’s 

regulation of CCRs.

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

Comment Number: EPA-HQ-RCRA-2009-0640-06356-1

Organization1:U.S. Chamber of Commerce

Commenter1: William L. Kovacs

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. Management of CCRs - Comments On The Regulatory Approaches Proposed In The Notice 

(75 Fed. Reg. at 35221).

A. As a threshold matter, EPA lacks jurisdiction to lawfully promulgate either of the rules 

proposed in this Docket. Congress prohibited EPA from regulating coal ash until the Agency 

submits a report to the U.S. Senate Committee on Environment and Public Works and the U.S. 

House Committee on Energy and Commerce evaluating, among other things, alternatives to 

existing CCR disposal methods, the costs of CCR disposal alternatives, the impact of CCR 

regulation on the use of coal and other natural resources, and the current and potential utilization 

of CCRs. See 42 U.S.C. §§ 6921(b)(3)(A); 6982(n). In the past, EPA complied with the law. See 

75 Fed. Reg. at 35150-151 (Bevill determinations were based on the findings of “Reports” to 

Congress pursuant to “RCRA section 8000(n)”); 

www.epa.gov/osw/nonhaz/industrial/special/fossil/fsltech.htm. Yet, EPA has not prepared and 

submitted a “Report” to Congress prior to this rulemaking as required by RCRA, nor explained 

the justification for its failure to do so. See generally 75 Fed. Reg. at 35134 (discussing statutory 
12

authority for the action without alleging 42 U.S.C. § 6921(b)(3)(A) compliance). Similarly, EPA 

has failed to cite or comply with 42 U.S.C. § 6921(b)(3)(C), which mandates public “hearings” 

and opportunities for comment no later than “six months after the date of the” report to 

Congress, at which time EPA shall “determine to promulgate regulations” for CCRs or

“determine that such regulations are unwarranted.” See 75 Fed. Reg. at 35134. Therefore, EPA 

lacks jurisdiction and this rulemaking should be suspended and the Docket withdrawn until EPA 

has met all of its 42 U.S.C. § 6921(b)(3) obligations

Response: The Agency acknowledges and appreciates this comment, however the process by 

which the Agency makes a final Bevill Determination is outside the scope of this rulemaking in 

that the Agency has decided to defer its final Bevill Determination. The commenter is referred 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06398-95

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.4.6

Comment Excerpt Text:

Finally, one of the many significant problems with the Subtitle C option is the unprecedented and 

unlawful proposal to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive 

CCR surface impoundments. Id. at 35177. Even if such impoundments do not receive CCR after 

the effective date of the rule, EPA would require these impoundments to meet certain closure 

requirements. This would mean that previously closed and inactive surface impoundments -

many of which Duke Energy properly closed decades ago under the existing state solid waste 

programs, have changed owners, and/or now have structures built on top of them - would be 

regulatorily resurrected as “active” CCR disposal units. Consequently, they would be subject to 

full Subtitle C hazardous waste regulation. Such a requirement would be illogical and 

exceedingly costly.

Response: EPA is not pursuing a subtitle C rule for the management of CCRs. The reader is 

referred to the preamble discussion in the rule for a complete discussion on the rationale 

behind the Agency’s decision to regulate CCR under subtitle D of RCRA. See, in particular, Unit 

IV of the preamble (i.e., applicability), that discusses the Agency’s reasoning for requiring 

inactive CCR surface impoundments to be subject to the requirements of this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06400-2

Organization1:Waste Management (WM)

Commenter1: Susan Briggum
13

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2 2.1.6 11.3

Comment Excerpt Text:

We are surprised, however, by the false dichotomy posed in EPA’s proposal of two options to 

regulate CCRs when disposed: either as a Resource Conservation and Recovery Act (RCRA) 

Subtitle C regulated hazardous waste or as a RCRA Subtitle D nonhazardous waste subject only 

to citizen suit enforcement, not permitting, at disposal facilities. RCRA does not compel this 

legal interpretation of EPA’s authority. Nor is it wise to view RCRA through this narrow lens, 

because it creates an artificial constraint on EPA’s ability to fulfill its mission under RCRA to do 

what is necessary to protect human health and the environment. By taking the position that 

EPA’s authority under RCRA goes to only two relatively small waste streams, EPA abdicates 

responsibility to assure protection in the handling of the vast majority of wastes generated in the 

U.S.

Response: EPA is not pursuing a subtitle C rule for the management of CCRs. The reader is 

referred to the preamble discussion in the rule for a complete discussion on the rationale 

behind the Agency’s decision to regulate CCR under subtitle D of RCRA. See, in particular, Unit 

IV of the preamble. 

Comment Number: EPA-HQ-RCRA-2009-0640-06400-4

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2 2.1.6 7.3.3 7.4.2

Comment Excerpt Text:

Long-term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale 

for considering RCRA Subtitle C regulation of CCRs derives wholly from its self-imposed 

limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and 

municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the technical unit design 

and groundwater monitoring requirements that will effectively protect human health and the 

environment under either option are quite similar.” CCR Proposal at 35159.]. This constrained 

reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s 

mandate to protect human health and the environment. Under the rational of this rule, of the 7.6 

billion tons of solid waste EPA estimates to be in existence [Footnote 3: See 

http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over 

only 46 million tons of hazardous waste (6.9 million tons of non-wastewater) (CCR Proposal at 

35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for 

which RCRA could provide protection.
14

This limitation is very shortsighted, and undervalues the important protections EPA and the 

states have afforded communities under RCRA authority. Our experience under the RCRA 

Subtitle C and D programs has been comparable; under both programs, we see state regulators 

bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW 

landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the 

environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory 

program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_-

_Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA 

has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C 

regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with 

programs implementing the high siting, technical and operational standards EPA intended. The 

states assure those standards remain in force for the life of a facility’s permit, including the 

necessary post-closure monitoring period. Through the approval process and as states revise their 

programs over the years, EPA Headquarters and, in particular, the Regions provide scrutiny, 

technical assistance and oversight.

Response: The Agency acknowledges and appreciates this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-1

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.3.2.1

Comment Excerpt Text:

Subtitle C Applicability - CCRs do not exhibit characteristics of hazardous waste

Hazardous waste is defined as waste that exceeds EPA-established toxicity contaminant 

concentrations. The contaminants typically of concern with CCRs include metals such as 

Arsenic, Mercury, Barium, Cadmium, Selenium, Chromium, Lead, and others. While the 

contaminants present in CCRs can be a health concern, the contaminant concentrations found in 

CCRs are typically well under EPA’s hazardous thresholds.

Response: The Agency acknowledges and appreciates this comment. The reader is referred to 

the discussion in Unit X of the preamble supporting this rule, and the companion risk 

assessment for a discussion of the chemical characteristics of CCR. 
15

Comment Number: EPA-HQ-RCRA-2009-0640-06446-3

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

V. EPA Cannot Promulgate Subtitle C Regulations For CCRs

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

Response: The commenter is referred to the preamble discussion in Unit IV of the rule, as well 

as the discussion on statutory authority found in Unit II of the preamble discussion. 

Comment Number: EPA-HQ-RCRA-2009-0640-06534-3

Organization1:Lafarge North America Inc.

Commenter1: Brian Gasiorowski on behalf of Craig S. Campbell

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We stress that in RCRA, Congress explicitly mandated that EPA complete several distinct steps 

– in a specified sequence – before EPA could ever be authorized to propose actual Subtitle C 

regulations. Yet EPA proposed its Subtitle C regulations on June 21, 2010 without having first 

completed any of the statutorily-mandated steps.

The key, discrete, steps mandated by statute are:

1. EPA must perform a “detailed and comprehensive study” of CCRs pursuant to eight statutory 

factors. RCRA § 8002(n).

2. After completing such a study, EPA must publish a “Report to Congress” based on the study, 

that includes “appropriate findings.” EPA must submit that Report to two specified congressional 
16

committees (one House, one Senate). Id. 

3. After that submission, EPA must conduct public hearings and provide an opportunity for 

public comment on the Report to Congress and the findings contained in that Report. RCRA § 

3001(b)(3)(C).

4. After that public process, EPA must publish a “Regulatory Determination” in the Federal 

Register, based on the record developed through steps 1-3. The Determination must be 

accompanied by an “explanation and justification” and either (i) conclude that regulation of 

CCRs under Subtitle C is not warranted, or(ii) “determine to promulgate” Subtitle C regulations 

for CCRs. Id.

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

the end of the process. Id.

6. If EPA “determines to promulgate” Subtitle C standards, it must of course then prepare 

proposed rules and publish them for public comment in the Federal Register. RCRA § 3004(a); 5 

U.S.C. § 553

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. However, the process by which a final Bevill Determination is outside 

the scope of today’s rule, in that we are deferring Bevill and not making a final Bevill 

determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06722-10

Organization1:Arkansas Electric Cooperative Corporation (AECC)

Commenter1: Jonathan Oliver

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations For CCRs 

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C. Even setting aside EPA's failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal's Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 
17

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

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

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06722-26

Organization1:Arkansas Electric Cooperative Corporation (AECC)

Commenter1: Jonathan Oliver

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

AECC is a member of the National Rural Electric Cooperative Association (NRECA), and we 

agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is 

arbitrary and capricious and in direct contravention of the Bevill Amendment.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06722-27

Organization1:Arkansas Electric Cooperative Corporation (AECC)

Commenter1: Jonathan Oliver

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

AECC is a member of the National Rural Electric Cooperative Association (NRECA) and we 

agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is 

arbitrary and capricious and in direct contravention of the Bevill Amendment. 
18

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06726-4

Organization1:The North American Coal Corporation

Commenter1: Joseph D. Friedlander

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

EPA's regulatory process is contrary to the intent of Congress for a one-time finding under the 

Bevill Amendment whether CCRs should be designated as hazardous wastes. Congress did not 

intend for an ongoing 30-year study of coal ash. An exhaustive and detailed study was 

completed, findings reported to Congress in 2000, and any changes to these findings must 

require a revisit with Congress before creating new regulations, as described below. 

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.c. §§ 6921-6931, generally 

established a "cradle to grave" management scheme governing the generation, transportation, 

treatment, storage and disposal of the hazardous wastes that would be subject to this stringent 

RCRA Subtitle C program. 

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA 

Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil 

fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. 

Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer 

regulatory requirements because they were generated in "very large volumes," "posed relatively 

low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous 

waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final 

hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final 

rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as 

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations. 

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, 

onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations 

and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 

6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill 

Amendment established a special process, which EPA was required to follow before CCRs and 

the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See 
19

also, EDF v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) ("Indeed, our reading of the statute and 

legislative history strongly suggests that Congress designed the Bevill Amendment to break with 

the previous approach to regulation of hazardous industrial wastes."). 

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle 

C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 

6921(b)(3)(A). Second, Congress directed EPA to conduct a "detailed and comprehensive study" 

on the adverse effects on human health and the environment of CCRs and other special wastes. 

42 U.S.C. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how 

to determine if wastes were hazardous and subject to Subtitle C under the regulations that were 

to become effective on November 19, 1980, Congress expressly directed that the Bevill study 

include an analysis of: 

1. the source and volumes of CCRs generated per year; 

2. present disposal and utilization practices; 

3. potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials; 

4. documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proved; 

5. alternatives to current disposal methods; 

6. the costs of such alternatives; 

7. the impact of those alternatives on the use of coal and other material resources; and 

8. the current and potential utilization of such materials. 

Third, Congress directed that EPA publish a report on such study, which was to include 

"appropriate findings," not later than 24 months after October 21, 1980. Id The Bevill Report 

was to be submitted to the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives. Id

Fourth, the Bevill Amendment further stipulated that within six months after the Report to 

Congress, EPA, after public hearings and the opportunity for comment, had to determine whether 

to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were 

unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were 

warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle 

C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 

1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on 

the Report to Congress] will be a determination of whether regulation is warranted in the future, 

not regulations themselves."). 

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980 for 

publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No. 

91-2435 (D.D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel 

combustion wastes into two categories, and agreed to follow the Bevill process separately for the 

two categories. EPA had actually published its First Report to Congress on fossil fuel 

combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 

1988). On August 9,1993, EPA issued a regulatory determination that regulation of four large 
20

volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, 

and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 

Fed. Reg. 42,466. 

In the second phase of the Bevill utility industry process, EPA addressed issues of 

comanagement, ash derived from co-burning of coal from non-hazardous solid waste, ash 

derived from clean coal combustion, and combustion residues from burning oil and natural gas. 

EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 

(April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. 

Reg. 32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination 

that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes 

was "not warranted." 65 Fed. Reg. at 32,215. 

An analysis of the Bevill Amendment reveals that the above-described special Bevill process 

established by Congress provided for a one-time evaluation of CCRs and the other special 

wastes. First, the Bevill Amendment by its terms calls for a "study" and a "report." 42 U.S.C. §§ 

6982(n). The use of the singular, as well as the statutory context, means that Congress 

deliberately established a one-time study and one-time Report to Congress obligation. Similarly, 

Congress called for a one-time regulatory determination when it stated that "not later than six 

months after the date of submission of the applicable study" EPA should "either determine to 

promulgate regulations ... or determine that such regulations are unwarranted." 42 U.S.C. § 

6921(b)(3)(C).

Second, Congress made it clear it was establishing a one-time study, repOli and regulatory 

determination obligation when it required that the report and study be completed by a date 

certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a 

temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach 

consistent with a one-time study, report and regulatory determination. 42 U.S.C. § 

6921(b)(3)(A). 

Moreover, if Congress had intended to extend the Bevill process thirty years beyond the 1980 

date Congress established for completion of the Bevill study and Report, Congress would have 

done so explicitly. That Congress did not do so further confirms that it intended that the Bevill 

process consist of a one-time report, study and regulatory determination for CCRs. Thus, with 

the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion 

wastes, including CCRs, was completed. For all the above reasons, the Bevill Amendment

established a one-time study, report and regulatory determination for CCRs. Direction to EPA 

was made clear many years ago: conduct a study, determine whether CCR's should be regulated 

as a hazardous waste, report to Congress and then act accordingly. EPA completed their assigned 

work and reported to Congress that CCRs should not be regulated as Subtitle C hazardous 

wastes. EPA cannot now decide on its own to change its mind, contrary to Congressional intent 

and without any Congressional reporting, consultation or direction, and simply promulgate new 

hazardous waste regulations

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 
21

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06817-13

Organization1:Portland Cement Association

Commenter1: Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA is well aware that, in its implementation of RCRA, the agency must balance the statute’s 

two goals: (1) protecting human health and the environment, and (2) encouraging reuse and 

recycling. While it is clear that EPA has a responsibility to protect human health and the 

environment, it is also clear that Congress did not intend for EPA to subjugate RCRA’s 

companion directive to conserve resources by the reuse and recycling of materials that would 

otherwise be discarded when EPA has not first demonstrated that human health and the 

environment would not be protected if a material is reused or recycled or, as is being proposed in 

this rulemaking, could not be protected unless the disposal of the material is regulated under 

RCRA subtitle C. [FN 4: PCA will discuss EPA’s failure to have demonstrated this later in these 

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

treated as such by EPA.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06817-17

Organization1:Portland Cement Association

Commenter1: Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As we have discussed in some detail throughout these comments, the impact of subtitle C 

regulation would not only be counter to EPA’s statutory duty to promote waste recycling and 

reuse, but such regulation would also have severe environmental and economic consequences. 

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

referred to the discussions in Units IV and VI of today’s rule for additional discussion. 

Comment Number: EPA-HQ-RCRA-2009-0640-06820-6

Organization1:Western Business Roundtable
22

Commenter1: Holly Propst

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 2.1.3

Comment Excerpt Text:

2. Treatment of CCPs as “hazardous waste” under RCRA Subtitle C is inappropriate. 

The Roundtable joins dozens of Members of Congress, state policymakers, including the 

National Governors Association, Western Governors Association, numerous state environmental 

protection agencies and vast numbers of private parties in opposing categorization of CCRs as 

hazardous waste under Subtitle C of RCRA. Such a step would have far-reaching and negative 

impacts on the U.S. economy and severely hamper the energy production and electricity 

generation sectors’ – including a number of Roundtable members’ – abilities to meet the nation’s 

burgeoning energy demands. 

The Roundtable wishes to associate itself with the detailed comments submitted by a variety of 

organizations, including the Utility Solid Waste Activities Group (USWAG), NMA and others, 

regarding the legal frailties associated with this alternative. In short: the proposed RCRA Subtitle 

C option would constitute an impermissible reversal of the Agency’s 2000 final Bevill 

Regulatory Determination for CCRs.

Such a reversal would be a direct contravention of the plain language of Subtitle C, which lays 

out clear and specific procedures EPA is to follow to determine whether and how to regulate 

CCRs under the Act. That statutory process sets up a one-time-only determination. It does not 

contemplate reversal of the final determination. 

Even assuming the statute did allow EPA to make a new determination, it could not contravene 

the statutory procedures Congress laid out for such determinations, including: a technicallysupported determination, reporting to Congress, consultation with states and public stakeholder 

input. 

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

apply RCRA retroactively. The law has always been prospective, as it relates to regulatory 

requirements. Yet, in this alternative, EPA seems to be seeking regulation of inactive or 

previously closed CCR surface impoundments. This seems to us outside the recognized scope of 

the statute.

Response: With respect to this last point, the Agency refers the commenter to the discussion in 

Unit VI (applicability) that discusses the Agency discussion to apply this rule to inactive CCR 

surface impoundments. 

Comment Number: EPA-HQ-RCRA-2009-0640-06825-3

Organization1:National Solid Wastes Management Association (NSWMA)
23

Commenter1: Edward W. Repa

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Also, EPA did not follow the mandatory statutory process for revising Bevill Amendment waste 

before issuing RCRA Subtitle C regulations for CCR. Title 42 Section 6921(b)(3)(c) and 6982(n) 

of the United States Code for identification and listing of hazardous waste, and a court decision 

(American Portland Cement Alliance v. EPA, 101F.3d 772, 777 (D.C. Cir. 1996)) state that 

before EPA proposes regulations of CCR under RCRA Subtitle C, it must: 

1. Conduct a comprehensive study on the waste and submit a report to Congress on the adverse 

effects on human health and the environment on the disposal practice; 

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

3. Issue a regulatory determination as to whether the regulation is warranted based on the 

information obtained by the report to Congress, public hearings, and comments. 

For CCR, EPA prepared two previous reports to Congress when they determined that CCR 

should remain exempt from regulation under RCRA Subtitle C. However, EPA has not 

submitted such a report for the regulatory determination that CCR should be a hazardous waste.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-30

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle C Proposal to regulate inactive and/or previously closed surface impoundments is 

unlawful. 

EPA's proposed Subtitle C option represents an unprecedented expansion of RCRA's Subtitle C 
24

jurisdiction by extending hazardous waste controls to previously closed, inactive CCR disposal 

units. This is the most far-reaching application of hazardous waste disposal controls in EPA's 

30·year implementation of the federal program and would subject CCRs to more onerous 

disposal controls than for any other hazardous waste regulated under Subtitle C. 

Response: The Agency is not promulgating a RCRA subtitle C rule, however, the Agency is 

regulating inactive CCR surface impoundments as defined in the rule. The reader is referred to 

Unit VI of the preamble, in particular the section on applicability of the rule for a discussion of 

how EPA is regulating inactive CCR surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-12

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4

Comment Excerpt Text:

EPA completed the Bevill regulatory process for CCRs in 2000; the statute does not authorize 

EPA to reverse that decision. EPA has completed the Bevill process pursuant to a judiciallyimposed deadline and determined, in accordance with the congressionally-mandated decisionmaking process, that CCRs do not warrant regulation under Subtitle C. The statutory decisionmaking process is complete and RCRA does not authorize EPA to decide to “take a second bite 

at the apple” and reverse its final CCR Regulatory Determinations in a manner of its own 

choosing. 

Congress established a detailed process by which EPA could determine whether and how to 

regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining 

that CCRs do not warrant regulation under RCRA Subtitle C, and concluded instead that CCRs 

warrant regulation under RCRA’s Subtitle D non-hazardous waste program. The statute does not 

contemplate, let alone authorize, EPA undertaking another round of the Bevill decision-making 

for CCRs. If it did, the statutory process and its associated deadlines for reaching a final 

Regulatory Determination would have no meaning, and EPA could continually change its mind 

in an abbreviated fashion, as illustrated by the proposed Subtitle C option. 

If EPA wishes to once more undertake the statutorily-prescribed process for reaching a final 

regulatory determination for CCRs, it must obtain this authority from Congress. If Congress 

were to grant EPA such authority, it would be reasonable to expect that Congress would establish 

new statutory deadlines and perhaps new and different statutory study factors for EPA to 

evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority 

from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory 

Determinations for CCRs. Therefore, EPA cannot legally pursue the Subtitle C option. 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 
25

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-13

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Even assuming EPA had the authority to revisit and reverse its final Regulatory Determination 

for CCRs, the Agency’s proposed Subtitle C option does not comport with the statutory process 

that Congress demanded EPA adhere to in determining whether and how to regulate CCRs under 

RCRA Subtitle C. At a minimum, EPA must conduct thorough studies demonstrating a clear 

need for regulation; provide to Congress a report detailing its findings on those studies; conduct 

public hearings and solicit comments on that report to Congress; issue a final determination 

based on the report to Congress; and provide an opportunity for public comment on that report 

regarding whether and how to regulate CCRs under RCRA. Congress painstakingly crafted such 

mechanisms into the statute to ensure well-founded decision making and EPA is not at liberty to 

ignore such clear Congressional intent. 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-18

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C.
26

The fundamental flaw in the proposed Subtitle C option is that EPA is not at liberty to reverse its 

final Regulatory Determinations that CCRs do not warrant regulation under Subtitle C of RCRA. 

Because the statute does not authorize EPA to reverse these final Regulatory Determinations, 

EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even assuming for 

purposes of argument that the statute did authorize such reversal, EPA’s proposal to regulate 

CCRs under Subtitle C does not comport with the Bevill Amendment’s statutorily-prescribed 

decision-making process.

While EPA’s current policy priorities may favor the Subtitle C option over the Subtitle D option, 

policies cannot trump the law. The United States Court of Appeals for the District of Columbia 

Circuit cautioned against precisely such precipitous agency action by new administrations when, 

in the pursuit of political and policy agendas, agencies stray beyond the plain language of their 

authorizing statutes:

We recognize that a new administration may try to effectuate new philosophies that have been 

implicitly endorsed by the democratic process. Nonetheless, it is axiomatic that the leaders of 

every administration are required to adhere to the dictates of statutes that are also products of 

democratic decision-making. Unless officials of the Executive Branch can convince Congress to 

change the statutes they find objectionable, their duty is to implement the statutory mandates in a 

rational manner.

International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 827 (D.C. Cir 1983). 

The D.C. Circuit’s caution rings true in this case. [Footnote 1: The same caution was echoed by 

in a recent speech before the Environmental Law Institute by Judge Tatel of the D.C. Circuit: 

[I]t's at times like these, when a new administration is determined to change environmental 

policy, that our commitment to the fundamental principles of administrative law is really 

tested... In both Republican and Democratic administrations, I have too often seen agencies 

failing to display the kind of careful and lawyerly attention one would expect from those 

required to obey federal statutes and to follow federal statutes and to follow principles of 

administrative law. In such cases, it looks to all the world that agencies choose their policy first 

and then later seek to defend its legality. This gets it backwards. . . . It's backwards because 

whether or not agencies value neutral principles of administrative law, courts do, and they will 

strike down agency action that violates those principles – whatever the president's party, 

however popular the administration, and no matter how advisable the initiative. "The 

Administrative Process and the Rule of Environmental Law, the Honorable David S. Tatel, Oct. 

6, 2009, at an Environmental Law Institute symposium entitled "An Agenda for the New EPA" 

(emphasis added).]

While Administration and EPA policies may have changed over the last two years, the law 

governing the decision-making process by which EPA may choose to regulate CCRs under 

RCRA has not.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 
27

Comment Number: EPA-HQ-RCRA-2009-0640-06987-16

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

EPA Does Not Have the Authority to Reverse Its Final Regulatory Determination Under 

The Bevill Amendment

EPA completed the statutorily-required Bevill Amendment process in May 2000 when it issued 

its final Regulatory Determination for all remaining fossil fuel combustion wastes, including 

CCRs managed with certain low-volume wastes. Based on the record evidence, hearings, and 

public comment on the 1999 Report to Congress, EPA once again concluded that CCRs and 

other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C 

hazardous waste program. EPA concluded instead that the development of national nonhazardous solid waste regulations under RCRA Subtitle D is appropriate when CCRs are 

disposed of in landfills or surface impoundments.[Footnote 4: 65 Fed. Reg. 32214 (May 22, 

2000)].

Entergy believes that the primary issue with the proposed Subtitle C option is that it is premised 

on the notion that EPA may, at will, reverse its final Regulatory Determinations that CCRs do 

not warrant regulation under Subtitle C of RCRA. However, the statute does not authorize EPA 

to reverse these final Regulatory Determinations; thus EPA may not adopt the Subtitle C 

hazardous waste option for CCRs. Additionally, EPA’s proposal to regulate CCRs under Subtitle 

C does not meet the intent of the Bevill Amendment’s statutorily-prescribed decision-making 

process.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-17

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4
28

Comment Excerpt Text:

In the event that Congress were to grant EPA the authority to undertake an additional regulatory 

determination for CCRs, Congress could establish new and different statutory deadlines and 

perhaps new and different statutory study factors for EPA to evaluate. Absent such authority 

from Congress, Entergy does not believe that EPA may alter its final 1993 and 2000 regulatory 

determinations for CCRs, nor pursue its Subtitle C proposed option.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-17

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

MJMEUC opposes regulation of CCRs as hazardous waste, and asserts that EPA has no 

substantive basis for doing so.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-21

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

MJMEUC asserts that EPA has overreached in the unprecedented and unlawful proposal to 

extend RCRA Subtitle C jurisdiction to previously closed and/or inactive CCR surface 
29

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

rule.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06992-2

Organization1:National Association of Manufacturers

Commenter1: Keith W. McCoy

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. The EPA’s Reconsideration of its Prior Bevill Regulatory Determination is Contrary to Law 

The EPA’s proposal to reconsider its previous regulatory determination not to regulate CCRs is 

contrary to the procedures set forth in the Resource Conservation and Recovery Act (RCRA). 

RCRA establishes a one-time process for making a regulatory determination, and the EPA does 

not have the authority to revise it now. Alternatively, even if the EPA possesses the authority to 

revise that determination and promulgate Subtitle C regulations for CCRs , it must follow the 

detailed procedures specified in RCRA. The EPA has failed to do so here.

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

RCRA establishes a one-time special process for making Bevill regulatory determinations, and 

the EPA has no authority to revise its prior determination. This conclusion flows from the text, 

history and judicial interpretation of the Bevill Amendment. 

The Bevill Amendment was enacted in response to the EPA’s decision to abandon the “special 

waste” concept it initially considered for high volume, low risk wastes, such as CCRs. See 45 

Fed. Reg. 33,084 (May 19, 1980). The EPA’s final rule identifying hazardous wastes under 

RCRA Subtitle C was scheduled to take effect on November 19, 1980. It would have treated 

CCRs as any other waste, subject to the full requirements of RCRA Subtitle C. Congress 

intervened before this rule could take effect, enacting the Bevill Amendment. See 42 U.S.C. §§ 

6921(b)(3)(A), (c)6982(n). 

The Bevill Amendment established a special process, which the EPA needed to follow before 

CCRs and other special wastes could be regulated as hazardous wastes under Subtitle C of 
30

RCRA. See Envt’l. Defense Fundv. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (“Indeed, our 

reading of the statute and legislative history strongly suggests that Congress designed the Bevill 

Amendment to break with the previous approach to regulation of hazardous industrial wastes”). 

Until the EPA completed that process, Bevill wastes, including CCRs, were temporarily 

exempted from regulation under Subtitle C. 42 U.S.C. § 6921(b)(3)(A). 

The Bevill process specified by Congress involved four separate steps: 

1. First, the EPA was to conduct “a comprehensive study and submit a report on the adverse 

effects on human health and the environment, if any of the disposal and utilization of” CCRs to 

two Congressional Committees - the Committee on Environment and Public Works of the United 

States Senate and the Committee on Energy and Commerce of the United States House of 

Representatives. 42 U.S.C. § 6982(n). This report to Congress (RTC) was to be submitted within 

24 months of October 21, 1980 (i.e., by October 21, 1982), and was to include an analysis of 

eight different issues. Id.; 65 Fed. Reg. 32218 (describing procedural and substantive 

requirements for preparing and submitting RTCs). 

2. Second, the EPA was required to receive comments and hold public hearings on the RTC. 42 

U.S.C. § 6921(b)(3)(C). 

3. Third, following the public comment, and within six months of submission of the RTC, the 

EPA was to issue a “regulatory determination” as to whether Subtitle C regulation of CCRs (and 

the other special wastes identified in RCRA § 8002(n)) was warranted based on the “information 

developed or accumulated pursuant to such study, public hearings, and comment.” Id.; In re: 

Leed Foundry, Inc., 13 E.A.D. ___, RCRA (3008) Appeal No. 07-02 (Feb. 20, 2008) at 9-10 

(describing preparation and submission of report to Congress as “statutory prerequisite” to 

issuance of regulatory determination). 

4. Finally, only after these preliminary steps were completed and only if the regulatory 

determination found it to be warranted, the EPA was to propose and issue regulations to require 

that CCRs be managed under Subtitle C. 42 U.S.C. § 6921(b)(3)(A); see also American Portland 

Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. Cir. 1996) (describing how RTC and 

regulatory determination precede rulemaking to establish Subtitle C regulations). 

Although it missed the statutory deadlines, the EPA already completed this process, preparing 

two RTCs and issuing two regulatory determinations with respect to fossil fuel combustion 

wastes. [Footnote 1: Section 3001(b)(3(A) exempts from regulation (until EPA complies with 

section 3001(b)(3)(C)) “fly ash waste, bottom ash waste, slag waste and flue gas emission 

control waste generated primarily from the combustion of coal or other fossil fuels.” CCRs are a 

subset of these wastes.] In 1988, the EPA submitted its first RTC related to fossil fuel 

combustion waste, limited to an analysis of CCRs from electric utilities. See 58 Fed. Reg. 42466 

(Aug. 9, 1993). This was followed by the EPA’s regulatory determination that regulation of these 

wastes under Subtitle C was not warranted. Id. The EPA issued a second RTC for all other fossil 

fuel combustion wastes in March 1999. See 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. The EPA subsequently 

issued its regulatory determination regarding the wastes evaluated in this RTC. See 65 Fed. Reg. 

32214 (May 22, 2000). In this regulatory determination, the EPA concluded, first, that all fossil 

fuel combustion wastes should remain exempt from regulation under Subtitle C, and, second, 

that it would develop Subtitle D regulations for CCRs disposed of in landfills or surface 

impoundments or used to fill surface or underground mines. Id. at 32215. The EPA never issued 
31

any such regulations. 

The text, history and judicial interpretation of the Bevill Amendment make it clear that RCRA 

establishes a one-time, never-to-be-repeated process for evaluating CCRs and other special 

wastes. With the issuance of the 2000 regulatory determination, the Bevill process for fossil fuel 

combustion wastes, including CCRs, was completed. The EPA has no authority to begin the 

process anew. 

The plain text of the Bevill Amendment makes this clear. It calls for a single “study” and a single 

“report.” 42 U.S.C. §§ 6982(n). It establishes one set of deadlines for preparing and submitting 

the RTC (within 24 months of October 21, 1980), id., and for issuing a regulatory determination 

(within six months of the submission of the RTC). 42 U.S.C. § 6921(b)(3)(C). The statute’s use 

of the singular form and its establishment of a single set of dates by which the EPA was to 

complete the process is a clear expression that Congress intended for the EPA to perform the 

required analyses only once and not repeat them at the Agency’s whim. Indeed, the Bevill 

Amendment established a temporary exemption from RCRA Subtitle C regulation for special 

wastes, until completion of the study, RTC and regulatory determination, providing further 

evidence that the Bevill regulatory process was to be performed only once. 42 U.S.C. § 

6921(b)(3)(A). Moreover, the statute does not provide the EPA any explicit authority for 

revisiting the Bevill process once completed is conclusive proof that Congress intended the 

process to be completed once, shortly after enactment, not thirty years later as the EPA is 

attempting to do now. 

The D.C. Circuit’s decision in Solite Corp. v. EPA, 952 F. 2d. 473 (D.C. Cir. 1991), confirms 

this conclusion. There, the court stated that “[t]he statutory provision directing the EPA to study 

Bevill wastes suggests by its terms that a one-time study is sufficient. See 42 U.S.C. § 6982(p) 

(“The Administrator shall conduct a detailed and comprehensive study. . . . [and] shall publish a 

report of such study. . . .”). Id. at 491; see also id. (“The way in which the temporary nature of 

the Bevill Amendment is expressed in the statute also lends support to the EPA’s interpretation 

[that the Bevill Amendment establishes a one-time Bevill process]. 

The EPA has long interpreted the Bevill Amendment as establishing a one-time process for the 

Agency to submit its RTC and issue a regulatory determination for special wastes that could not 

be later updated even in the face of additional evidence: 

"Congress directed EPA to conduct a single study of wastes generated by mineral mining and 

processing facilities, because of concern that existing wastes might not be readily amenable to 

Subtitle C controls and might pose relatively low hazard to human health and the environment. 

Moreover, contrary to some commenter’s assertions, the statutory language includes explicit 

time limit on the Bevill exclusion, which apply to the submission of the required Report to 

Congress and subsequent regulatory determination."

54 Fed. Reg. 15,316, 15,338 (April 17, 1989). 

In sum, having completed the Bevill regulatory process for CCRs in the 1990s, the EPA may not 

start over again. RCRA does not authorize the EPA to revisit its regulatory determination nearly 

thirty years after it was supposed to have been completed (and nearly twenty years after it was 
32

completed). 

B. Alternatively, the EPA Has Failed To Follow the Mandatory Statutory Process for Revising 

its Prior Regulatory Determination and Issuing Subtitle C Regulations for Coal Combustion 

Residues. 

The Bevill Amendment clearly prohibits the EPA from revisiting its prior regulatory 

determination. But, even if the EPA did possess this authority, the Agency must, at a minimum, 

comply with the four-step process specified in RCRA. Thus, before issuing regulations to require 

management of CCRs under Subtitle C, the Agency must first (1) conduct “a comprehensive 

study and submit a report on the adverse effects on human health and the environment, if any of 

the disposal and utilization of” CCRs to Congress; (2) receive comments and hold public 

hearings on that RTC; and (3) issue a regulatory determination as to whether such regulation is 

warranted based on the “information developed or accumulated pursuant to such study, public 

hearings, and comment.” 42 U.S.C. §§ 6921(b)(3)(C), 6982(n). Only after completion of these 

initial steps may the EPA engage in notice and comment rulemaking to issue Subtitle C 

regulations for CCRs. American Portland Cement Alliance, 101 F.3d at 777. This procedural 

mandate is reflected in the plain text of RCRA, court decisions and the EPA’s prior consistent 

interpretation and practice with respect to Bevill Amendment wastes. There can be no dispute 

that the EPA has failed to satisfy any of these statutory prerequisites to support its proposal both 

to revise its prior regulatory determinations not to regulate CCRs under Subtitle C and to 

promulgate new Subtitle C rules for CCRs. 

The text of RCRA makes it clear that before the EPA can issue rules to regulate CCRs under 

Subtitle C, it must first engage in the multi-step process described above. RCRA demands that 

the EPA prepare and submit a RTC. 42 U.S.C. § 6982(n). It requires the preparation of a 

regulatory determine to “either determine to promulgate regulations under [Subchapter C] or 

determine that such regulations are unwarranted.” 42 U.S.C. § 6921(b)(3)(C). The state demands 

that the EPA’s determination “be based on information developed or accumulated pursuant to 

such study, public hearings, and comments.” Id. (emphasis added). Only thereafter, if the EPA 

determines that such regulations are warranted, may the EPA initiate notice and comment 

rulemaking. See American Portland Cement Alliance, 101 F.3d at 777 (describing how RTC and 

regulatory determination precede rulemaking to establish Subtitle C regulations); In re: Leed 

Foundry, Inc., 13 E.A.D. ___, RCRA (3008) Appeal No. 07-02 (Feb. 20, 2008) at 9-10 

(describing preparation and submission of report to Congress as “statutory prerequisite” to 

issuance of regulatory determination). The EPA has not complied with any of these requirements 

to support the proposed revision to its prior Bevill determination regarding the need to regulate 

the disposal of CCRs and its proposed Subtitle C regulations. 

In support of its new proposal to regulate CCRs under Subtitle C, the EPA recognizes that it 

must revise its two prior regulatory determinations. See 75 Fed. Reg. 35419. The EPA, however, 

has not undertaken the necessary steps to support such a change. Most significantly, the EPA has 

not prepared a new study under section 8002(n) regarding the impacts of disposal which includes 

an evaluation of the eight statutory criteria. Having failed to conduct that study, the EPA has 

neither prepared nor submitted a RTC setting out its findings. The EPA also has not based its 

proposed revision to its earlier regulatory determinations, accepted comment, or held public 
33

hearings on such a RTC. In all these respects, the EPA has plainly failed to comply with the clear 

procedural mandate of section 3001(b)(3)(C). 

RCRA is clear that the section 8002(n) RTC must precede the EPA’s regulatory determination. 

Section 3001(b)(3)(C) provides that the EPA’s regulatory determination “shall be based on 

information developed or accumulated pursuant to [the RTC], public hearings, and comment.” 

See also 65 Fed. Reg. 32218-19 (describing statutory requirements for issuing regulatory 

determinations under section 3001(b)(3)(C)). The use of the term “shall” in this section clearly 

indicates that the EPA has no discretion but must base its regulatory determination on a RTC. 

The text of section 3001(b)(3)(A) supports this conclusion by exempting from regulation the 

Bevill wastes – including fossil fuel combustion wastes - “until at least six months after the date 

of submission of the applicable study required to be conducted [under section 8002] and after 

promulgation of regulations in accordance with subparagraph (C).” 42 U.S.C. § 6921(b)(3)(A). 

In other words, any decision to regulate Bevill wastes under Subtitle C must be preceded by (1) 

the RTC, (2) the regulatory determination, (3) comments on the RTC, and (4) public hearings. 

The EPA has not completed any of these required steps in support of its most recent proposal. 

The EPA cannot claim that it has satisfied these requirements through the submission of its two 

prior RTCs regarding fossil fuel combustion wastes in 1988 and 1999. Those RTCs may have 

sufficed for the EPA’s earlier regulatory determinations, but a new study must be conducted and 

a new report submitted to Congress when the EPA proposes to revise or modify its earlier 

regulatory determination. Indeed, the EPA cannot claim that its current proposal is supported by 

its earlier RTCs such that it is relieved from the obligation to conduct the necessary study, collect 

the required data and prepare a new RTC on which it must accept comment and hold public 

hearings. It is clear that the EPA is not basing its proposed revision to the regulatory 

determination on the two prior RTCs (the latest of which is 11 years old). Rather, the EPA is 

relying on the new data and information that has been obtained since its earlier determinations 

and presented in the proposal. See 75 Fed. Reg. 35149-59. As such, the EPA has not complied 

with section 3001(b)(3)(C)’s requirement to base its regulatory determination on the RTC 

mandated by section 8002(n) (along with information obtained through public comment and 

hearings on that RTC). 

The EPA’s prior statements and its consistent practice confirm that the Agency has interpreted 

the Bevill Amendment to mandate that it first conduct and submit a RTC, accept comments and 

hold public hearing on the RTC, and then base its regulatory determinations on that RTC. Each 

prior Bevill regulatory determination was preceded by these very steps, and was based upon and 

supported by a unique and specially prepared “detailed and comprehensive” RTC. For example, 

the two prior regulatory determinations for fossil fuel combustion residues were preceded by and 

based upon such RTCs. See 58 Fed. Reg. 42466 (Aug. 9, 1993) (regulatory determination for 

CCRs generated at electric utilities, preceded by 1988 Report to Congress); 65 Fed. Reg. 32214 

(May 22, 2000) (regulatory determination for wastes from combustion of fossil fuels, preceded 

by 1999 Report to Congress); see alsoIn re: Leed Foundry, Inc., 13 E.A.D. ___, RCRA (3008) 

Appeal No. 07-02 (Feb. 20, 2008) at 7 (describing history and basis of two prior fossil fuel 

combustion wastes regulatory determinations). Indeed, in the consent decree entered in Gearhart 

v. Reilly, C.A. No. 91-2435 (D.D.C. June 30, 2002), the EPA specifically acknowledged that, 

before it could issue its regulatory determination for all fossil fuel combustion wastes it needed 
34

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

The regulatory determinations for the other Bevill wastes were similarly preceded by and based 

upon a RTC. See 60 Fed. Reg. 7366 (Feb. 7, 1995) (regulatory determination for cement kiln 

dust preceded by December 31, 1993 RTC); 53 Fed. Reg. 25466 (July 6, 1988) (regulatory 

determination for crude oil and natural gas waste preceded by December 1987 RTC); 56 Fed. 

Reg. 27300 (June 13, 1991) (regulatory determination for 20 mineral processing wastes preceded 

by July 1990 RTC); 51 Fed. Reg. 24496 (July 3, 1986) (regulatory determination for extraction

and beneficiation waste preceded by December 1985 RTC). As this history demonstrates, the 

EPA has never issued a regulatory decision regarding a Bevill waste without first preparing and 

relying upon a RTC. This consistent practice demonstrates the EPA’s understanding that the 

RTC is a mandatory prerequisite for any regulatory determination. 

The EPA’s proposal here is not sufficient for the required RTC and associated process for 

issuing regulatory determinations for Bevill wastes. As the EPA has stated: 

"In the Bevill Amendment, Congress created a special process for the Agency to determine 

which wastes, if any, should retain the temporary statutory exclusions from RCRA Subtitle C. 

This process is similar to the rulemaking process, although it entails additional steps. In 1980, 

Congress required EPA to study certain wastes, . . . conduct a detailed and comprehensive study 

and submit it to Congress, conduct public hearings and accept public comments, and finalize its 

decision in a Report to Congress."

See Complainant’s Brief In Support of Its Notice of Appeal to the Environmental Appeals Board 

in In re Leed Foundry, Inc., RCRA (3008) Appeal No. 07-02 (EAB) (Jul. 2, 2007) (available at 

http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filings%20By%20Appeal%20Number/D64

D0A837C2CC2958525730C0075BDCA?OpenDocument). In this definitive statement, the EPA 

thus correctly recognized that the process for adopting a regulatory determination differs from 

and entails additional Congressionally-mandated steps compared to the rulemaking process 

under RCRA. See also American Portland Cement Alliance, 101 F.3d at 777 (distinguishing 

between process for adopting a Bevill regulatory determination and regulations implementing 

and following such a determination). Congress had a good reason for creating this distinction and 

the additional procedures for issuing regulatory determinations – namely that the potential 

economic impacts of regulating high volume, low toxicity wastes like CCRs warrant extra study 

and careful consideration. In light of these concerns, the EPA cannot ignore these requirements 

in its rush to modify its earlier determinations and promulgate Subtitle C regulations for CCRs. 

In short, even if the EPA believes that it has the authority and desires to issue regulations under 

Subtitle C for CCRs, it must first follow the statutorily mandated process for issuing regulatory 

determinations. It must start by conducting the study required by section 8002(n), submitting the 

RTC, and accepting comment and holding public hearings on that RTC. Only then may the EPA 

propose to modify its regulatory determination, after which it may undertake the process, if any, 

to promulgate Subtitle C regulations. Manufacturers believe the EPA’s failure to follow this 

process here renders the proposed revision to its earlier regulatory determinations and proposed 

Subtitle C regulations as contrary to statutory mandates. 
35

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06993-6

Organization1:Oglethorpe Power Corporation

Commenter1: Douglas J. Fulle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Throughout the Proposed Rule, EPA repeatedly characterizes the Subtitle C option as being 

inherently more appropriate because it would entail direct federal oversight of CCB regulation. 

EPA assumes there will be "less compliance" or "slower compliance" under a Subtitle D 

program than Subtitle C. [Footnote 5: 75 Fed. Reg. at 35159.] As noted in the preamble, "the 

Agency is reticent to establish a regulatory program without any federal oversight. [Footnote 6: 

Id. at 35157.] These statements reflect a possible distrust of the states' abilities, or perhaps the 

states' willingness, to implement Subtitle D standards. 

As an initial matter, EPA's lack of confidence in state solid waste programs cannot overshadow 

the fact that CCBs simply do not meet the profile of a RCRA hazardous waste and do not fit the 

Subtitle C paradigm. CCBs routinely pass EPA's own Toxic Characteristic Leaching Procedure 

("TCLP"), and they do not warrant listing under 40 C.F.R. § 261.11(a)(3) for the reasons spelled 

out in NRECA's comments. CCBs are also produced in large quantities that are entirely out of 

proportion with annual generation levels of truly hazardous wastes. In fact, the sheer volume of 

CCBs-and not their inherent chemical characteristics- led to the damage associated with TVA's 

Kingston spill, which features prominently in EPA's justification for this rulemaking. RCRA 

authorizes EPA to regulate high-volume, nonhazardous solid waste by setting minimum federal 

standards under Subtitle D. EPA lacks authority to list a nonhazardous waste as a "special waste" 

under Subtitle C as a means of obtaining federal control over its disposal. 

EPA now suggests abandoning its own long-standing TCLP and its prior analysis of CCBs. 

However, EPA also admits in the Proposed Rule that Subtitle D would involve essentially the 

same technical requirements for landfills and surface impoundments as does the proposed 

Subtitle C option. [Footnote 7: Id. at 35133 ("EPA would implement similar technical controls 

under RCRA subtitle C or D.").] Subtitle C is unique, of course, in that it would entail cradle-tograve hazardous waste management of CCBs. However, this aspect of Subtitle C, rather than 

being an enhancement, is actually a drawback that would lead to a myriad of insurmountable 

compliance problems relating to the point of hazardous waste generation, de minimis releases, 

and other issues, as detailed in NRECA's comments. EPA has not addressed those obstacles in 
36

the Proposed Rule. Instead, EPA simply assumes the Subtitle C approach is more appropriate

because it would entail federal oversight of essentially the same set of technical controls as 

would be implemented by the states under Subtitle D. EPA's fundamental distrust of state 

regulation is irrelevant and, as discussed below, entirely unjustified.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-07395-4

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. EPA has failed to follow the procedures outlined in the RCRA § 8002(n).

RCRA Section 8002(n) outlines the Congressionally mandated review procedure and the eight 

Bevill factors that must be considered before EPA makes a regulatory proposal regarding the 

disposal of CCRs. The Bevill Amendment establishes a detailed procedure that must be met in 

order to determine whether and how to regulate CCRs under RCRA Subtitle C. This includes 

that EPA undertake and complete an assessment of CCRs that consider all of the eight BeviIl 

factors. EPA must also prepare, and submit, a Report to Congress and conduct public hearings 

and provide an opportunity to comment on the Report. The subject proposed rules essentially 

serve as a reassessment and an ultimate reversal of the original Regulatory Detemlinations, and 

yet, EPA has failed to comply with any of the steps outlined in the Bevill Amendment. While the 

TCCPC acknowledges that EPA has held public hearings during this rulemaking initiative, it 

does not believe that such hearings, which related to a co-proposed rulemaking initiative, serve 

the same function as the statutorily prescribed public hearing under the Bevill Amendment. The 

result is a premature regulatory action that does not meet the requirements outlined in the Bevill 

Amendment.

The TCCPC supports NRECA's detailed analysis of EPA's failure to sufficiently undertake 

Bevill Amendment procedures, particularly NRECA's analysis of EPA's lack of authority to 

reverse a final Regulatory Determination

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 
37

Comment Number: EPA-HQ-RCRA-2009-0640-07489-1

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Under current RCRA regulations, wastes that are not characteristically hazardous can be listed as 

hazardous if they meet certain criteria (e.g. F listed hazardous wastes per §261.31, K listed 

hazardous wastes per §261.32, etc). These listed wastes are presumed to pose risk from the point 

of generation through disposal, resulting in regulation that is commonly referred to as applying 

“from cradle to grave.”

The rules proposed to regulate CCRs in a new Subtitle C regulatory category of “special waste” 

presume a fundamentally different regulatory logic: That the waste may or may not be hazardous 

at the point of generation, depending on how it will be used and in some instances it only 

becomes hazardous if sufficient quantities are disposed of in any particular site. In the parlance 

of a power station boiler operator, “CCRs won’t hurt you if you breathe them inside the 

powerhouse, CCRs will only hurt you when you pile them on the ground.” Once this 

determination is made, then RCRA allows EPA to regulate it from that accumulation point all the 

way back to its point of generation, despite the lack of inherent risk posed.

This change in regulatory philosophy represents an unprecedented expansion of EPA’s authority 

to regulate materials under RCRA. By this logic, any material – regardless of the hazard it poses 

to human health or the environment – can be regulated as a Subtitle C “special waste." In other 

words, any materials can be regulated under RCRA due solely to the management practices 

employed at its disposal, rather than due to their inherent risk. By adopting this philosophy for 

CCBs, EPA is signaling that it can regulate any and every material it chooses if EPA decides the 

management practices surrounding its disposal are suboptimal. This expansion in authority is 

unprecedented and contrary to congressional intent by arrogating to EPA authority that Congress 

clearly intended to be reserved to the states.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-07489-7

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive
38

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. EPA lacks scientific and legal justification for Subtitle C classification of CCBs. EPA ignores 

fundamental science by categorically defining CCBs as hazardous.

Though all coal fired units produce CCBs, not all CCBs are the same. There are vast chemical 

differences among CCBs. These chemical differences dictate whether, under fundamental RCRA 

principles, a waste material is hazardous.

Defining all CCBs as hazardous waste, or all CCBs destined for disposal as hazardous, negates 

the science behind the statutory program of materials classification. Congress directed EPA to 

"develop and promulgate criteria for identifying the characteristics of hazardous waste...taking 

into account toxicity, persistence, and degradability in nature, potential for accumulation in 

tissue, and other related factors such as flammability, corrosiveness, and other hazardous 

characteristics." SWDA §3001, 42 USC §6921. EPA's corresponding regulations define material 

as hazardous waste by reference to these statutory and other highly specific criteria. 40 CFR 

§261.3. Under RCRA, hazardous waste management resources are reserved for wastes that 

appropriately necessitate the most protective measures. [Footnote 7: See, e.g., EPA, RCRA 

Orientation Manual: Hazardous Waste Identification, available at 

www.epa.gov/osw/inforesources/pubs/orientat/rom31.pdf (describing factors for determining 

whether a waste is hazardous and explaining that wastes not exhibiting a certain degree of hazard 

may not be "hazardous".)] EPA's current Proposal disregards these scientific principles and 

longstanding interpretation of RCRA by a simple re-definition of either the wastes or their 

ultimate use, allocates scarce financial resources to the management of CCBs. This sets a 

dangerous precedent for other administrative re-direction of the statutory program for waste 

materials management and waters down and muddies the definition of true hazardous waste. 

EPA references additional data and analysis in its Proposal. At best, these sources lead to the 

conclusion that EPA's categorical redefinition also countermands bedrock RCRA principles of 

resource conservation and recovery and undermines the potential replacement of virgin materials 

with recyclable materials.

EPA violates mandatory RCRA procedures for decisions regarding Bevill wastes by 

categorically defining CCRs as hazardous. 

Under SWDA §3001(b)(3)(A)(i) and 40 CFR §261.4(b)(4), CCBs are included in the statutory 

Bevill exemption as a "special waste" and not subject to Subtitle C hazardous waste regulation. 

RCRA directs EPA to address Bevill-exempt materials under a two-step process involving first 

whether the material is a hazardous waste and, second if it is hazardous, how should it be 

regulated. EPA does not have authority to distinguish between CCRs based on how they are 

managed when making the threshold determination of whether the material is a "hazardous 

waste."

In addition, RCRA imposes basic procedural requirements for making a Bevill determination and 

proposing Subtitle C regulations for Bevill wastes, none of which EPA has satisfied. RCRA 

directs EPA to conduct a study and submit a report to Congress “on the adverse effects on human 

health and the environment, if any, of the disposal and utilization of” CCRs to Congress; take 

comment and hold public hearings on the report; and on the basis of the information gained from 
39

that process, to determine whether Subtitle C regulation is warranted. SWDA 

§§3001(b)(3)(c),8002(n). The DC Circuit found these to be necessary prerequisites to Subtitle C 

regulation in American Portland Cement Alliance v. EPA, 101 F.3d 772, 777 (D.C. Cir. 1996). In 

this proposed rule, EPA reverses a final Bevill determination, but has not fulfilled these statutory 

measures, which are clearly intended to permit Congress an adequate opportunity to oversee 

EPA’s environmental analysis and consider public comment on the threshold matters of whether 

and why a hazardous waste listing may be appropriate. EPA skipped those steps altogether, and 

instead compels immediate consideration of the Subtitle C regulation itself, clearly violating 

RCRA.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-07489-8

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA violates RCRA by proposing to list CCBs as hazardous without fully evaluating regulatory 

authorities. 

EPA does not have the legal authority to list CCRs as a hazardous waste under Subtitle C of 

RCRA because EPA failed to conduct a full evaluation of federal and state regulatory programs 

applicable to CCRs. In making listing determinations for hazardous wastes under Subtitle C, 

EPA must consider the eleven factors set forth in 40 CFR §261.11(a)(3). One of the specific 

factors to consider is "action taken by other governmental agencies or regulatory programs based 

on the health or environmental hazard posed by the waste or waste constituent." [Footnote 8: 40 

CFR 261.11(a)(3)(x).]

Although EPA claims that "significant gaps" in state regulation are a primary justification for 

regulating CCRs under subtitle C,[Footnote 9: 75 FR 35173] EPA concedes in its proposed rule 

that it has not identified and evaluated all the necessary state regulatory programs applicable to 

CCRs. One of the key studies relied on by EPA was a joint DOE/EPA study between 1994-2004 

entitled "Coal Combustion Waste Management at Landfills and Surface 

Impoundments."[Footnote 10: 75 FR 35151] EPA emphasizes several shortcomings in state 

regulatory programs found by the study, but acknowledges that the study only focuses on eleven 

states, which account for just half of the CCRs generated in the U.S, and it does not address "all 

of the existing regulatory requirements that states may or could impose through other authorities. 

[Footnote 11: Id.] Similarly, the only other study cited by the EPA "lacks details on the 

substance of the state requirements." [Footnote 12: Id.]Overall, EPA admits that it "lacks any 

real details regarding how states, in practice, oversee the management of these materials when 
40

treated as wastes." [Footnote 13: Id.]

Therefore, EPA has not evaluated other regulatory programs applicable to CCRs and does not 

have the authority to list CCRs as a hazardous waste under subtitle C of RCRA. EPA, by its own 

admission, has not complied with the statutory requirements of 42 USC §6921 and the regulatory 

requirements of 40 CFR §261.11. EPA must conduct a thorough evaluation of the pertinent state 

regulatory programs before listing CCRs under subtitle C.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-07680-2

Organization1:Honigman Miller Schwartz and Cohn LLP on behalf of Lansing Board of 

Water and Light (LBWL) and Michigan State University (MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level, 

and EPA should defer any action on the proposal unless and until Congress amends RCRA to 

provide specific authority for EPA to regulate CCR disposal.

Response: The Agency acknowledges and appreciates this comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-1

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 2.1.6 7.3.1 10.4.2

Comment Excerpt Text:

Alpha is extremely concerned with EPA's proposal to regulate Coal Combustion Residue 

("CCR") as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act 

("RCRA") (42 U.S.C. § 6901, etseq.) For the reasons stated below, EPA's proposed action is 

illegal, arbitrary and capricious, and is yet another attack on the American coal industry. Coal 

continues to be the primary source of energy for the great majority of US electric power 

generation and CCR has been proven to be successfully and safely used in many beneficial 
41

applications. EPA's proposed action here would significantly and unnecessarily increase the cost 

of domestic energy supplies. It would also chill, if not preclude, these beneficial uses, and 

overwhelm state and local resources efforts to handle truly hazardous materials. The result of 

EPA's proposed action would be a dramatic step backward in environmental protection and 

ongoing efforts to achieve the congressional intent of RCRA, and will result in nothing more 

than making the United States economy more dependent on foreign energy sources, more 

vulnerable to energy price increases and volatility, and more at risk from exposure to real 

hazardous wastes.

Response: The Agency acknowledges and appreciates this comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-2

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4

Comment Excerpt Text:

The proposed rule is illegal because it violates the Bevill Amendment to RCRA which

specifically limits EPA's ability to regulate CCR. EPA can consider CCR regulation only in 

extremely limited circumstances and only after extensive analysis of the science and risk issues 

associated with CCR disposal. On two prior occasions, in 1993 and 2000, EPA issued 

comprehensive reports pursuant to the Bevill Amendment regarding CCR and in both instances 

determined that CCR should not be regulated under Subtitle C. The 2000 determination noted the 

array of potential issues, but found that those issues did not justify or require the extreme cost 

and difficulty of regulating such a vast quantity of low risk material under Subtitle C.

As an initial matter, EPA's action here is illegal because EPA no longer has any authority to 

regulate CCR as a hazardous waste. Having submitted the required report and mage its 

determination that regulation of CCR as a hazardous waste is unwarranted, EPA is done. The 

Bevill Amendment has no language allowing EPA to revisit its determination. Unless or until 

Congress amends RCRA to grant EPA the authority to reconsider its 2000 findings, EPA has no 

authority to regulate CCR as a hazardous waste.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 
42

Comment Number: EPA-HQ-RCRA-2009-0640-07802-3

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 10.4.2

Comment Excerpt Text:

EPA claimed to retain authority to revisit this issue in its 2000 determination primarily based on 

its desire to ensure that industry continued its trend toward voluntary control. Yet in issuing the 

current proposed action, EPA simply ignores the continuing (and expanding) trend toward 

control of CCR disposal, including the burgeoning development of numerous new and more 

sustainable beneficial uses which have expanded exponentially since EPA's 2000 determination. 

Not only is EPA evading the sole ground it might have for reopening its 2000 decision, it is 

paradoxically proposing to stop this very positive trend by taking action to stifle these beneficial 

uses, impede the development of further beneficial measures. As a result, EPA's proposed action 

would significantly expand the very risks that EPA claims to address, making that action illegal, 

wrong-headed and counter-productive.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-5

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6 7.3.1 10.4.2

Comment Excerpt Text:

In short, EPA's proposed action is illegal in that it fails to follow the Bevill Amendment under 

which it no longer has authority to regulate CCR as a hazardous waste. It is plainly arbitrary and 

capricious in that it ignores its prior determinations and fails to use appropriate scientific 

information in support of its decision. Instead of meeting EPA's primary goal of protecting the 

environment, EPA's proposal will make us all less safe, forcing greater reliance on foreign 

energy sources while overwhelming state resources for handling truly hazardous materials and 

precluding protective beneficial uses.

Response: The commenter is referred to the preamble discussion in Unit IV of the rule relating 
43

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08220-2

Organization1:PowerSouth Energy Cooperative

Commenter1: Dr. Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

PowerSouth is a member of the National Rural Electric Cooperative Association (NRECA) and 

we agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of 

RCRA is arbitrary and capricious and in direct contravention of the Bevill Amendment. 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08220-6

Organization1:PowerSouth Energy Cooperative

Commenter1: Dr. Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations For CCRs 

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08241-4

Organization1:Revolutionary Plastics, LLC

Commenter1: Steven G. Barringer and Tasha M. Newland, Holland & Hart LLP, on behalf of 

Revolutionary Plastics

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:

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

RULE 

EPA’s proposed rule would do something EPA has never done before: it would revoke Bevill 

Amendment status for wastes that EPA has already studied, and for which EPA has already 

determined that Subtitle C hazardous waste regulation was inappropriate. EPA’s proposal is a 

misreading of its legal authority under RCRA. Significantly, in previous rulemakings and in the 

D.C. Circuit Court of Appeals, EPA argued against the very position it takes now. [Footnote 24: 

See 54 Fed. Reg. 36,592 (September 1, 1989) (preamble to final mineral processing rule); 54 

Fed. Reg. 15,316 (April 17, 1989) (preamble to revised proposed mineral processing rule); 53 

Fed. Reg. 41,288 (October 20, 1988) (preamble to proposed mineral processing rule); Solite 

Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991); see also discussion at pages 15-18 below.] 

However, in the preamble to the proposed rule, EPA neither acknowledges nor justifies its aboutface. EPA’s failure to explain this change is by itself fatal to the proposed rulemaking. 

EPA’s only justification for proposing to revoke the Bevill-exempt status of these wastes is a 

reference to the May 2000 Regulatory Determination in which EPA stated the Agency would 

continue to review the issues, and would reconsider its decision that Subtitle C regulations were 

unwarranted based on a number of specifically identified factors, and that such reconsideration 

could result in a subsequent revision to the Regulatory Determination. [Footnote 25: 75 Fed. 

Reg. at 35,137.] However, neither the 2000 Regulatory Determination nor the proposed rule 

present any justification or support for EPA’s assertion that it has the legal authority to 

continually revisit Bevill determinations. Furthermore, EPA’s statement in the May 2000 

Regulatory Determination is similar to other statements EPA has made in other RCRA 

rulemakings and is essentially just a place-saver for future action. Finally, EPA’s statement in the 

2000 Regulatory Determination and EPA’s proposed rule are both contradictory to EPA’s prior 

position in Solite Corp. v. EPA [Footnote 26: 952 F.2d 473 (D.C. Cir. 1991).], as discussed more 

fully below. 

A. The Bevill Amendment provides EPA Limited and One-Time Authority to Study and 
45

Determine the Appropriate Regulatory Scheme for CCRs 

The idea for the substance of the Bevill Amendment came from EPA itself. When EPA first 

proposed RCRA Subtitle C regulations in 1978, it solicited comments on a flexible alternative 

regulatory scheme for large-volume/low toxicity solid wastes, or “special wastes,” including 

CCRs. [Footnote 27: 43 Fed. Reg. 58,946, 59,015 (December 18, 1978).] By 1980, however, 

when the RCRA rules were promulgated, EPA had decided the special waste concept was 

unnecessary. [Footnote 28: 45 Fed. Reg. 33,084 (May 19, 1980). ] Special waste generators 

sought help from Congress, and Congress enacted the Bevill Amendment in October 1980, just 

before the RCRA rules became effective. [Footnote 29: Pub. L. No. 96-482, codified at 42 

U.S.C. §§ 6921(b)(3)(A), 6982(n) (study requirements for CCRs). The legislation is referred to 

as the Bevill Amendment because it was sponsored in the House of Representatives by Rep. 

Thomas Bevill of Alabama.]

For CCRs (and for the other “special wastes”), the Bevill Amendment required EPA to undertake 

a “detailed and comprehensive study” of the wastes and to prepare and submit a Report to 

Congress presenting the conclusions of the study. [Footnote 30: Id] EPA was supposed to 

complete the CCR Report by October 21, 1982.[Footnote 31: As EPA acknowledges in the 

preamble, it missed this deadline. EPA subsequently prepared two CCR studies, and two 

regulatory determinations, in compliance with court-ordered deadlines. In both cases, EPA 

determined that Subtitle C regulation was not warranted, and announced that it would 

promulgate national management standards for CCRs under RCRA Subtitle D. 75 Fed. Reg. at 

35,137. However, EPA never proposed or adopted any Subtitle D standards.] Then, based on the 

study results, and after public meetings and opportunity to comment, EPA was to make a 

“regulatory determination,” deciding whether Subtitle C hazardous waste regulation of CCRs 

was warranted. Meanwhile, the Bevill Amendment provided a temporary exemption from RCRA 

Subtitle C regulation for CCRs, until at least six months after EPA completed the required study, 

report to congress and regulatory determination. [Footnote 32: 42 U.S.C. § 6921(b)(3)(A)(i).] 

A common-sense reading of these statutory provisions compels the conclusion that they describe 

a one-time study and regulatory decision making process. Congress ordered EPA to undertake a 

study and determine how to regulate “special wastes,” and it provided a temporary exemption 

from RCRA requirements until these actions were complete. There is no hint in the statute that 

Congress intended for EPA to revisit Bevill determinations periodically, or ever, for that matter. 

The Bevill Amendment instead was a fix to what Congress adjudged to be regulatory 

overreaching on EPA’s part. 

B. EPA Itself has interpreted the Bevill Amendment as a “One-Time” Congressional Authority 

In fact, it is not necessary to apply statutory construction principles, to parse the legislative 

history, or to guess what Congress meant when it adopted the Bevill Amendment. In the past, 

EPA has clearly and repeatedly interpreted the Bevill Amendment as a one-time grant of 

authority. Before the Agency can take action on the proposed rule, it must, at a minimum, 

disclose this regulatory record and offer justification for departing from it. 

In 1988, EPA proposed to limit the scope of the Bevill Amendment as it applied to “mineral 
46

processing wastes.” [Footnote 33: 53 Fed. Reg. 41,288 (October 20, 1988).] In the preamble to a 

revised proposed rule, published in April 1989, EPA responded to comments that it should be 

prepared to undertake Bevill studies and make regulatory determinations on mineral processing 

wastes that might be generated in the future: 

Both the administrative record and congressional intent clearly indicate that the Bevill 

Amendment was intended to provide a temporary exclusion, pending further study, over a fixed 

time period. Congress directed EPA to conduct a single study of wastes generated by mineral 

mining and processing facilities, because of concern that existing wastes might not be readily 

amenable to Subtitle C controls and might pose relatively low hazard to human health and the 

environment. Moreover, contrary to some commenters’ assertions, the statutory language 

includes explicit time limits on the Bevill exclusion, which apply to the submission of the 

required Report to Congress and subsequent regulatory determination. [Footnote 34: 54 Fed. 

Reg. at 15,338.] 

EPA reiterated its position on this subject in the preamble to the final rule. [Footnote 35: 54 Fed. 

Reg. 36,592 (Sept. 1, 1989).] The statutory language applicable to CCRs is identical in all 

significant respects to the language governing the Bevill study of mineral processing wastes. 

The final mineral processing rule – including EPA’s position about the one-time nature of its 

Bevill authority – was challenged in Solite Corp. v. EPA. [Footnote 36: 952 F.2d 473 (D.C. Cir. 

1991).] EPA continued to argue to the court that its Bevill authority was limited to a one-time 

study and determination of Bevill status: 

This decision followed from EPA’s reading of congressional intent based on the statutory 

language and scheme of sections 3001(b)(3) and 8002(p) of RCRA, which establish a temporary 

exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to 

study new waste streams. EPA’s construction was also based on other indicia, such as the strict 

statutory time periods governing the mineral processing waste exclusion ... in RCRA. [citations 

omitted]. From this evidence of congressional intent, EPA reasonably determined that Congress 

authorized EPA to make a one-time interpretation or snapshot of mineral processing wastes, 

rather than a continuing series of studies and regulatory determinations.... [Footnote 37: 

Respondent’s Brief, Solite v. EPA, at 68 (May 8, 1991).] 

The Solite court agreed, concluding:

The statutory provision directing EPA to study Bevill wastes suggests by its terms that a onetime study is sufficient. ... 

In any event, this court’s holding in [Environmental Defense Fund v. EPA, 852 F.2d 1316, (D.C. 

Cir. 1988)] secures EPA’s position that a one-time determination is sufficient. There we 

interpreted the Bevill Amendment as an exclusion specifically for “the category of wastes 

designated as ‘special wastes [] ... in EPA’s 1978 proposed hazardous waste regulations.” 

[citations omitted]. While we did not go so far as to foreclose Bevill status for a future waste that 

might satisfy a pre-set criterion, we clearly enough rejected the theory that Congress intended the 

coverage of the Bevill exclusion to evolve with time. [Footnote 38: 953 F.2d at 491.] 
47

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

proposed rulemaking. Yet, it is inescapable that EPA’s current position is irreconcilable with its 

past interpretation of the statute. EPA does nothing in the proposed rule to come to terms with 

these inconsistencies. 

EPA – in justification of its current proposal – may not simply argue that the past interpretation 

was in a preamble, was at the most guidance, and does not bind the Agency. The regulatory 

scope of the mineral processing rule is based on what EPA maintained in the Solite litigation was 

its expert legal interpretation of its responsibilities under the Bevill Amendment. EPA 

maintained the legal position in court and won. It will not do now for EPA to entirely ignore its 

past pronouncements on this issue, as if they never happened. [Footnote 39: See Williams Gas 

Processing-Gulf Coast Co. v. Federal Energy Regulatory Commission, 475 F.3d 319, 326 (D.C. 

Cir. 2006) (noting that “[r]easoned decisionmaking necessarily requires consideration of relevant 

precedent” and “agency action must either be consistent with prior action or offer a reasoned 

basis for its departure from precedent” (citations omitted); Mobile Oil Corp. v. Environmental 

Protection Agency, 871 F.2d 149 (D.C. Cir. 1989) (holding that EPA’s regulatory approach 

represented a change in agency policy, but that EPA acknowledged that change and cogently 

explained the reasons for it). ] 

EPA also may not find justification in a narrow reading of the Solite court’s opinion. It is true 

that the court held only that EPA could decide only to conduct a single Bevill study for mineral 

processing wastes. However, EPA argued much more than that in its submissions to the court: 

EPA took the position that Congress only gave it the authority to make Bevill determinations 

once. In dicta interspersed with its holding, the court agreed, suggesting that EPA’s reading of 

the Bevill Amendment as limited to a one-time exercise was a reasonable one. [Footnote 40: 952 

F.2d at 491.] EPA now has an obligation to explain these past pronouncements and to justify its 

departure from this interpretation of its Bevill Amendment authority. 

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

Conduct the Required Bevill Study 

Even if EPA had the authority it claims to revisit Bevill determinations, it would have to do so in 

compliance with the terms of the Bevill Amendment. As already explained above, the first (and 

mandatory) step of the Bevill Amendment is to conduct a detailed and comprehensive study of 

the exempt wastes. EPA has not conducted the study, and cannot list CCRs as hazardous wastes 

until it complies with that requirement and the other requirements of the Bevill Amendment. 

EPA does not address this failure, and neglects even to mention the study requirement as a 

prerequisite to any decision to revoke Bevill-exempt status. But the requirement is clear, and 

stands in the way of EPA’s proposed CCR listing. 

EPA’s proposed rule does not satisfy the Bevill study requirement. As explained above, RCRA 

requires a detailed and comprehensive study, and provides a list of eight study factors that must 

be addressed. [Footnote 41: See Section I.V.A., above.] In the Proposed Rule, EPA discusses 

each of the eight Section 8002(n) study factors and evaluates them based on the data on which it 
48

made the May 2000 Regulatory Determination “as well as the most recent data available.” 

[Footnote 42: 75 Fed. Reg. at 35,151.] However, this analysis does not meet the statutory 

requirement to “conduct a detailed and comprehensive study and submit a report on the adverse 

effects on human health and the environment, if any, ... to the Committee on Environment and 

Public Works of the United States Senate and the Committee on Energy and Commerce of the 

United States House of Representatives.” [Footnote 43: 42 U.S.C. § 6982(n).] If EPA wishes to 

revise its analysis of the eight study factors with regard to whether to regulate CCWs under 

Subtitle C, it must comply with the statutory duty to prepare a revised Report to Congress. 

EPA does acknowledge the study factors in the preamble (but not the requirement to conduct a 

new study), and notes that it will carefully consider all comments submitted in response to the 

proposed rule. [Footnote 44: 75 Fed. Reg. at 35,133.] At best, this amounts to no more than lip 

service to the study requirement. Asking for comment in a rulemaking process is not equivalent 

to the active undertaking of a “detailed and comprehensive study,” as the statute requires. 

Otherwise, the quality and completeness of EPA’s study would depend entirely on the comments 

submitted by stakeholders. This passive approach is certainly not what Congress intended for 

EPA to do to satisfy the Bevill study requirement. 

EPA also cannot claim that the ongoing research being conducted by EPA’s ORD satisfies the 

Bevill study requirement. First and foremost, the four ORD studies are not complete, as EPA 

acknowledges. [Footnote 45: Id. at 35,139.] EPA describes the ORD research as “ongoing.” 

[Footnote 46: Id] Furthermore, EPA notes that the research conducted to date has generated a 

substantial amount of data and that such data “can be useful as a reference for assessing 

additional CCR samples in the future.” [Footnote 47: Id] The database containing the full dataset 

is presented as a “Beta” version, and may be further developed. [Footnote 48: Id] Even if the 

studies were completed, they would not fulfill the Bevill study requirements EPA must meet 

before it reverses a Bevill determination because the reports produced to date do not address all 

of the study factors required by statute.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-2

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:

A. EPA Must Satisfy Both The Bevill Amendment And Regulatory Standards For Subjecting A

Solid Waste (Or Category Of Solid Wastes) To Subtitle C’s Requirements
49

EPA suggests in the Proposed Rule that it is not proposing to regulate CCRs as hazardous waste 

because it is not going to call them hazardous, but rather is going to create a new category of 

“Special Wastes” that will erase all of the stigma associated with a hazardous waste listing 

decision. This justification defies logic and is purely an exercise in semantics. It is common 

knowledge that the express purpose of RCRA Subtitle C is to regulate hazardous waste, as 

evidenced by its title – “Hazardous Waste Management.”[Footnote 7: See Title 42 (“The Public 

Health and Welfare”), Chapter 82 (“Solid Waste Disposal”), Subchapter III (“Hazardous Waste 

Management”).] Thus, regardless of the name assigned to a specific waste (or group of wastes), a 

decision to regulate such material under Subtitle C is predicated on an EPA determination that 

those wastes satisfy RCRA’s definition of hazardous waste [Footnote 8: 42 U.S.C. § 6921(b).]. 

EME submits, for the reasons set forth below, that EPA’s proposal has not satisfied this 

requirement.

The Bevill Amendment factors supplement the RCRA hazardous waste criteria, and EPA must 

satisfy both standards before listing CCRs destined for disposal as a hazardous waste under 

Subtitle C. While the Proposed Rule briefly attempts to explain why CCRs as a group satisfy the 

requirements of 40 C.F.R. § 260.11 for subjecting a waste to RCRA Subtitle C,[Footnote 9: 75 

Fed. Reg. at 35,166-73.] EPA devotes a large portion of the preamble to explaining the Agency’s 

reconsideration of its prior Bevill determinations for CCRs, which suggests a belief by the 

Agency that the Bevill factors are somehow the only standard determinative of whether CCRs 

should be listed under Subtitle C [Footnote 10: Id. at 35149-66 (discussion of the Agency’s 

Bevill determination). EPA dedicated approximately 18 pages to its discussion of the Bevill 

determination, but only 8 pages to its discussion of the criteria for listing CCRs as a “special 

waste.” Compare id. at 35,149-66 with id. at 35,166-73.]. To the extent it is the Agency’s 

conclusion that the Bevill Amendment supplants the criteria for regulating CCRs under Subtitle 

C, that belief is misplaced and contrary to RCRA and the applicable regulations.

In order to be subject to the requirements of Subtitle C, a solid waste must satisfy the criteria for 

listing as a “hazardous waste” as that term is defined by the statute and regulations [Footnote 11: 

42 U.S.C. § 6921, et seq.; 40 C.F.R. § 261.1]. The criteria for determining whether a solid waste 

is a hazardous waste include “toxicity, persistence, and degradability in nature, potential for 

accumulation in tissue, and other related factors such as flammability, corrosiveness, and other 

hazardous characteristics.”[Footnote 12: 42 U.S.C. § 6921(a); 40 C.F.R. § 260.11.]. If a solid 

waste is not a hazardous waste, then it can only be subject to Subtitle D’s requirements. Congress 

did not eliminate that requirement when it modified RCRA in 1980 with the Bevill 

Amendment—it supplemented that requirement with the Bevill factors.

The Bevill Amendment revised Subtitle C to expressly prohibit the regulation of “fly ash waste, 

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

combustion of coal or other fossil fuels”[Footnote 13: 42 U.S.C. § 6921(b)(3)(A) (these CCR 

wastes are not subject to regulation as a hazardous waste “until at least six months after the date 

of submission of the applicable study required to be conducted under [section 8002(n)] . . . .”).] 

until after completion of a study by EPA considering the “adverse effects on human health and 

the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag 

waste, flue gas emission control waste, and other byproduct materials generated primarily from 

the combustion of coal or other fossil fuels.”[Footnote 14: Id. § 6982(n). This study must include 

an analysis of: “(1) the source and volumes of such material generated per year; (2) present 

disposal and utilization practices; (3) potential danger, if any, to human health and the 

environment from the disposal and reuse of such materials; (4) documented cases in which 
50

danger to human health or the environment from surface runoff or leachate has been proved; (5) 

alternatives to current disposal methods; (6) the costs of such alternatives: (7) the impact of those 

alternatives on the use of coal and other natural resources; and (8) the current and potential 

utilization of such materials.” Id.] However, that study alone is not sufficient to justify a CCR 

listing, but rather EPA must satisfy both the Bevill Amendment requirements and the 

Administrator must still make the applicable RCRA hazardous waste regulatory determinations –

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

waste—to subject those wastes to regulation as hazardous wastes under Subtitle C.[Footnote 15: 

Id. § 6921(b)(3)(A), (C) (“Not later than six months after the date of submission of the applicable 

study . . . the Administrator shall, after public hearings and opportunity for comment, either 

determine to promulgate regulations under this subtitle for each waste listed in subparagraph (A) 

of this paragraph or determine that such regulations are unwarranted. The Administrator shall 

publish his determination, which shall be based on information developed or accumulated 

pursuant to such study, public hearings, and comment, in the Federal Register accompanied by 

an explanation and justification of the reasons for it.”).

The statute also provides that if the Administrator decides to list CCRs as hazardous waste, the 

Administrator may modify some of the requirements to account for the special characteristics of 

these wastes. Under 42 U.S.C. § 6924(x) if the Administrator determines to regulate CCRs under 

Subtitle C, “the Administrator is authorized to modify the requirements of subsections (c), (d), 

(e), (f), (g), (o) and (u) and section 3005(j), in the case of landfills or surface impoundments 

receiving such solid waste, to take into account the special characteristics of such wastes, the 

practical difficulties associated with implementation of such requirements, and site-specific 

characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at 

the site, so long as such modified requirements assure protection of human health and the 

environment.”

Significantly, these special provisions governing CCRs described in notes 13 to 15 and 

accompanying text are in addition to—not instead of—the criteria that must be met to list a 

substance as hazardous waste.}

As Congress explained at the time, the Bevill amendment was motivated by a concern “that EPA 

may be hastily classifying wastes as hazardous and imposing burdensome costs on businesses 

without proper or sufficient data to support their classification.”[Footnote 16: 126 Cong. Rec. 

3361, 3346 (Feb. 20, 1980) (Rep. Traxler - MI).] Congress was concerned that a hasty decision 

“to treat these relatively harmless byproducts as special hazardous wastes subject to stringent 

regulation will only hasten the decline of the coal industry” in the U.S.[Footnote 17: Id. at 3361 

(Rep. Bevill - AL).] Motivated by the concerns about maintaining coal as the primary domestic 

source of energy, reducing reliance on foreign energy sources, and avoiding unreasonable and 

burdensome regulatory requirements, Congress imposed the Bevill Amendment’s study 

requirements on EPA to ensure that the Agency adequately studied CCRs prior to making a 

determination as to whether they were subject to Subtitle C’s requirements. As Rep. Staggers 

(WV) explained “[t]his amendment continues to subject specified byproducts of fossil fuel 

combustion, coal mining wastes and other so-called special wastes to existing regulatory 

programs under presently applicable Federal and State laws, but would preclude, until after 

completion of the required study and rulemaking, any EPA regulation of these wastes under 

[S]ubtitle C of RCRA.”[Footnote 18: Id. at 3365 (Rep. Staggers - WV).]

Put simply, the Bevill Amendment was designed to force EPA to slow down and take more 

deliberate action based on sufficient data to support any regulatory action with respect to CCR 
51

materials; it did not eliminate the fundamental RCRA requirement that EPA identify those 

wastes that are hazardous based on specific characteristics before subjecting them to Subtitle C. 

It does not give EPA special authority to circumvent Subtitle C’s requirements through the 

creation of a new category of “special waste.” As EPA admits “solid wastes may [only] become 

subject to regulation under subtitle C of RCRA in one of two ways...[;] a waste may be subject 

to regulation if it exhibits certain hazardous properties..., or if EPA has specifically listed the 

waste as hazardous.”[Footnote 19: 75 Fed. Reg. at 35,135 (internal citations omitted).] Thus, just 

because the Agency wants to call CCRs a “special waste”, it still has to determine whether or not 

they are hazardous and address the Bevill factors in order to subject them to regulation under 

Subtitle C; as explained in the subsections below, the Agency has not satisfied that requirement 

substantively or legally.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-3

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.1

Comment Excerpt Text:

B. EPA’s Proposal To List CCRs As A Single Category Of Waste Is Inconsistent With The 

Statute, Regulation And EPA’s Past Practice Because Individual CCRs Covered Under The Rule 

Are Not “Typically or Frequently” Hazardous

The standard for listing a solid waste as hazardous under Subtitle C is clear – and EPA’s 

proposal to list CCRs as a single category of waste does not meet the standard. Congress 

required EPA to develop criteria for listing hazardous waste “taking into account toxicity, 

persistence, and degradability in nature, potential for accumulation in tissue, and other related 

factors such as flammability, corrosiveness, and other hazardous characteristics.”[Footnote 20: 

42 U.S.C. § 6921(a). Congress defined “hazardous waste” as “a solid waste, or combination of 

solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious 

characteristics may--(A) cause, or significantly contribute to an increase in mortality or an 

increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial 

present or potential hazard to human health or the environment when improperly treated, stored, 

transported, or disposed of, or otherwise managed.” Id. At § 6903(5).] EPA promulgated 

regulations requiring that before a solid waste could be subject to Subtitle C requirements (i.e., 

listed as hazardous), EPA must first determine whether the waste:

1. Exhibits a hazardous characteristic;

2. Has been found to be fatal to humans at low doses (designated as Acute Hazardous Waste); or

3. Contains a toxic constituent (such constituents are listed in the regulations) and is capable of 
52

“posing a substantial present or potential hazard to human health or the environment when 

improperly treated, stored, transported, or disposed of, or otherwise managed.”[Footnote 21: 40 

C.F.R. § 261.11(a)(1)-(3) (emphasis added).]

It is undisputed that the CCRs at issue here do not trigger either of the first two categories above. 

With respect to the third, EPA may only list classes or types of solid waste as hazardous if the 

Agency “has reason to believe that individual wastes, within the class or type of waste, typically 

or frequently are hazardous.”[Footnote 22: Id. § 261.11(b) (emphasis added).] In promulgating 

the listing criteria, EPA explained that it proposed this provision to account for situations where 

“[a] class of wastes may exhibit sufficient uniformity of hazard to warrant listing on a class 

basis.”[Footnote 23: 45 Fed. Reg. 33,084, 33,114 (May 19, 1980) (emphasis added).] However, 

this does not mean that EPA may group solid wastes as it pleases without standards. On the 

contrary, EPA stated that “[t]he Agency of course, must demonstrate that sufficient uniformity 

exists or is likely to exist.”[Footnote 24: Id.] Thus, EPA has the burden of demonstrating that a 

proposed class or type of waste is both “sufficiently uniform” and “typically or frequently” 

hazardous. 

The D.C. Circuit has evaluated numerous challenges to EPA class listings and upheld listings 

where EPA performed risk analyses “specific to the waste streams” and “identified constituents 

of concern in each waste stream.”[Footnote 25: See Dithiocarbamate Task Force v. EPA, 98 F.3d 

1394, 1402 (D.C. Cir. 1996) (emphasis added).] Thus, where EPA has done individual analyses 

and the data permitted it to draw inferences regarding common characteristics of a specific class 

of waste, EPA has satisfied its burden of demonstrating that the class is “typically or frequently” 

hazardous. However, courts have vacated the inclusion of specific chemicals or waste streams in 

class listings where “EPA offer[ed] no reason for an extension of regulation across chemicals 

that are distinguishable on a key variable of listing” and “evidence relating to that chemical 

exonerates it from flaws leading the [A]gency to classify supposedly kindred chemicals as a 

group.”[Footnote 26: See id. at 1405.] EPA has failed to make the requisite demonstration here. 

The Proposed Rule would include waste streams in the CCR class that are so disparate that there 

is no way that EPA can group them based on common characteristics and conclude that they 

“typically or frequently” are hazardous. As such, EPA’s attempt to do so is contrary to law and is 

also inconsistent with EPA guidance and prior practice.

For example, EPA guidance provides that “[b]efore developing a hazardous waste listing,... [the 

Agency must] thoroughly study a particular waste stream and the threat it can pose to human 

health and the environment. If the waste poses enough of a threat...[EPA should] include[] a 

precise description of that waste on one of the hazardous waste lists in the regulations.”[Footnote 

27: EPA, RCRA Training Module, Introduction to Hazardous Waste Identification (40 CFR 

Parts 261), 4 (Sept. 2005).] A hazardous waste listing is supposed to be “a narrative description 

of a specific type of waste that EPA considers dangerous enough to warrant regulation” – i.e., 

one that describes with some precision “wastes from various industrial processes, wastes from 

specific sectors of industry, or wastes in the form of specific chemical formulations.”[Footnote 

28: Id.] EPA recognized that a thorough study of specific waste streams was important because 

overly broad listing descriptions risked subjecting non-hazardous portions of waste streams from 

an industry or facility to Subtitle C requirements unnecessarily [Footnote 29: See id.]. 

Unfortunately, as discussed in Section III.C below, EPA disregarded its own guidance in the 

Proposed Rule by proposing to capture all of the disparate types of CCRs within one overly 

broad category. EPA’s proposal is contrary to its past practice and contrary to its prior 

applications of the “typically or frequently” standard.
53

For example, in the early 1990s, EPA considered whether to regulate used oil as hazardous waste 

under Subtitle C, and contemplated three options (analogous to what it has proposed here), 

regulating: (1) all used oil as hazardous, (2) only the categories of used oil that were “typically or 

frequently” hazardous, or (3) not to regulate used oil as hazardous. In that context, EPA proposed 

that “typically or frequently” should be defined as “when 50 percent of [sic] more of the samples 

in a used oil category exceed the levels of concern.”[Footnote 30: 56 Fed. Reg. 48,000, 48,020 

(Sept. 23, 1991)] Using both TCLP and compositional data, EPA stated that:

if greater than 50 percent of the samples in a given used oil category were found to exhibit the 

TC and, based on compositional analysis, exceed the health-based number for TC constituents or 

PAHs by a factor of greater than 1,000, the used oil category is deemed to be “typically and 

frequently” hazardous [Footnote 31: Id.]. 

While EPA never promulgated this definition because commenters overwhelmingly supported 

the option of not listing used oil as a hazardous waste,[Footnote 32: 57 Fed. Reg. 41,566, 41,571 

(Sept. 10, 1992)] the definition is instructive and is entirely consistent with EPA’s past listing 

decisions [Footnote 33: See notes 39 to 45 and accompanying text.]. As explained below, applied 

here, EPA’s proposed definition of “typically and frequently” would have clearly indicated that 

the CCRs covered by the Proposed Rule do not satisfy the criteria for listing under Subtitle C 

because EPA’s own data show that CCR wastes rarely exceeded hazardous waste characteristic 

levels. For example, EPA had previously concluded that for co-managed CCR wastes only 2% (1 

of 51 samples) exceeded the applicable RCRA TC threshold and for individual CCRs, 0% of the 

coal bottom ash, 2% of the coal fly ash, 3% of the FGD materials, and 7% of the coal boiler slag 

samples exceeded the applicable TC.[Footnote 34: 65 Fed. Reg. at 32,222.] See Section 

III.D.1.a.[Footnote 35: EME submits that the metals content of the FGD materials is driven by 

fly ash and exhaust gas metals that settle in the scrubbers while the reaction with the SO2 is 

occurring.] EPA’s analysis for landfills was also based on timeframes that are not consistent with 

the typical or frequent standard, since the modeled constituent concentrations did not reach their 

peak levels for thousands of years [Footnote 36: See the discussion below at p. 36.] And while 

the modeling shows peak concentrations for surface impoundments being reached on a shorter 

timeframe, those concentrations are exaggerated by EPA’s use of atypical data, with EPA itself 

calling into question the viability of the two highest concentration estimates that drive its 

modeled estimates [Footnote 37: See the discussion below at p. 46-48.].

Similarly, EPA’s obligation to demonstrate sufficient uniformity when proposing a class listing 

is highlighted by its prior listing decisions. For example, the uniform presence of the toxic 

constituent in the waste stream has been a key consideration in whether EPA may regulate a 

waste under Subtitle C. EPA’s analysis and listing decision for Hazardous Waste No. F006 

[Footnote 38: 40 C.F.R. § 261.31(a) (“Wastewater treatment sludges from electroplating 

operations except from the following processes: (1) Sulfuric acid anodizing of aluminum; (2) tin 

plating on carbon steel; (3) zinc plating (segregated basis) on carbon steel; (4) aluminum or zincaluminum plating on carbon steel; (5) cleaning/stripping associated with tin, zinc and aluminum 

plating on carbon steel; and (6) chemical etching and milling of aluminum.”)] is a prime 

example. EPA first proposed a broad category for “wastewater treatment sludges from 

electroplating operations,” but later revised the listing to exclude six different processes. EPA 

made this revision because it agreed with commenters that the listing “was overbroad, including 

a number of processes which would not generate a hazardous waste because the hazardous waste 

constituents of concern -- chromium, cadmium, nickel and cyanides -- . . . would not be expected 

to be present in the sludges.”[Footnote 39: 45 Fed. Reg. 74,884, 74,887 (Nov. 12, 1980).]
54

The creation of Hazardous Waste No. F019 also highlights EPA’s emphasis on the uniform 

presence of toxic constituents as a basis for listing a waste as hazardous. In its Nov. 12, 1980 

interim final rule, EPA created F019 from a subset process that EPA had originally included in a 

broad listing for Hazardous Waste No. F006. While F006 was listed because of four constituents 

of concern, EPA concluded that “these [F019] sludges will not contain cadmium and nickel, two 

of the constituents of concern in other listed electroplating wastewater treatment sludges. We 

therefore are adopting in final form a separate listing designation for wastewater treatment 

sludges from the chemical conversion coating of aluminum (Hazardous Waste No. F019). . . 

.”[Footnote 40: Id.] Therefore, rather than grouping this plating process with the other plating 

processes described in F006, EPA created a new listing to ensure uniformity of the class, in 

recognition that this process resulted in sludge that only contained two of the four constituents of 

concern covered in F006. EPA followed the same approach of requiring sufficient uniformity in 

the following additional listing decisions:

-In 1998, EPA decided not to list as hazardous the wastes from the use of 14 chemicals as 

solvents [Footnote 41: 63 Fed. Reg. 64,372, 64,372 (Nov. 19, 1998).]. As part of its analysis, 

EPA rejected the suggestion that it should have broadly considered “solvent wastes” rather than 

limiting the scope of its analysis to the definition of solvents subject to the listing. EPA stated:

Given the ubiquity of solvents, the great variety of uses and the huge differences in the 

composition of the waste streams, EPA could not gather the evidence to list “solvent wastes” as a 

general category. Under the Agency’s regulations at 40 CFR 261.11(b), wastes may be listed as a 

category if they are “typically or frequently” hazardous. EPA could make no such findings for

“solvent” wastes in general and, therefore, has reasonably focused its investigation and listing 

decision [Footnote 42: Id. at 64,374.].

-EPA made a final determination not to list used oil destined for disposal as a hazardous waste 

because EPA found “that all used oils do not typically and frequently meet the technical criteria 

for listing a waste as hazardous waste.”[Footnote 43: 57 Fed. Reg. 21,524, 21,524 (May 20, 

1992).] EPA’s Notice of Data Availability related to the listing determination for used oil noted 

that “EPA now recognizes the variability of constituent concentrations between different used oil 

streams and now believes that it may not be appropriate to list all used oils as a hazardous 

waste.”[Footnote 44: 56 Fed. Reg. at 48,019 (Sept. 23, 1991). EME would also note that used oil 

can be considered on spec as a boiler fuel, but not classified as hazardous, even if it contains 

concentrations of cadmium 2.0 ppm (RCRA TC 1.0 ppm), chromium 10.0 ppm (RCRA TC 5.0 

ppm), and lead 100 ppm (RCRA TC 5.0 ppm) above the applicable TC thresholds, making 

EPA’s Subtitle C proposal with respect to CCRs even more puzzling.}

- Similarly, where EPA could not demonstrate uniformity, it chose not to expand a class listing. 

In declining to include foundry electric furnace emission control dusts and sludges in its listing 

of wastes from primary steel production as K061 wastes, EPA focused on the uniform 

composition of the waste to determine the grouping in a class and stated “we intended only to 

include wastes from primary steel production. . . . We are uncertain whether foundry electric 

furnace emission control dusts and sludges are sufficiently similar in composition to warrant 

inclusion in the same listing, so we are evaluating the potential hazardousness of foundry

industry wastes in separate actions.”[Footnote 45: 45 Fed. Reg. at 74,887 (emphasis added).]

As discussed below and like the examples described above, the variability of constituent 

concentrations between different CCR waste streams suggests that it is inappropriate to find that 
55

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

as a hazardous waste.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-5

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4

Comment Excerpt Text:

D. EPA’s Subtitle C Proposal Is Premised On A Dramatic Overstatement Of The Risks Posed By 

CCRs

In addition to its unjustified lumping of CCR materials into one class, this Section explains why, 

based on the data presented in the record, EPA has not satisfied its burden under RCRA of 

establishing that the CCRs (whether considered in the aggregate or individually) “typically or 

frequently are hazardous.”[Footnote 61: 40 C.F.R. § 261.11(b) (emphasis added).] EPA’s 

suggestion that these materials pose a substantial risk is premised on: (1) a risk assessment that 

dramatically overstates the real risks posed by CCRs, and (2) a limited number of damage cases 

that EPA claims show the dangers posed by these materials (see Section III.D.2 below), even 

though those damage cases are not relevant to the risks posed by these materials based on their 

inherent characteristics.

1. To Support Its Determination That Subtitle C Applies, EPA’s Recent CCR Risk Assessment 

Relies On Overly Conservative Assumptions That Are Plainly Inconsistent With Prior 

Assessments

EPA justifies its proposal to regulate CCRs under Subtitle C based in large part on the results of 

its 2003 risk assessment, which it alleges supports a determination that these materials should be 

subject to the hazardous waste generation, storage and disposal requirements of Subtitle C. 

EPA’s new assessment is problematic because (i) it represents a 180-degree reversal from prior 

assessments prepared by the Agency looking at CCR disposal issues, and (ii) it relies on 

unrealistic, overly conservative assumptions and modeling to support its risk conclusions (i.e. 

scenarios that are atypical and infrequent, to the extent that they would ever arise in the real 

world). As such, the administrative record developed by EPA does not support its proposal to 

regulate CCRs under Subtitle C.

a. Prior CCR Assessments

In October, 1980, Congress amended RCRA, adding a provision, known as the Bevill 

Amendment, to temporarily exclude large volume wastes from fossil fuel combustion from 

regulation under Subtitle C unless/until EPA conducted a study that considered the following 

eight factors as a prerequisite to taking any such regulatory action:[Footnote 62: See Section 
56

III.A above for a more complete discussion of the legal implications of the Bevill amendment.]

1. Sources and volumes of such materials generated per year;

2. Present disposal and utilization practices;

3. Potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

4. Documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proven;

5. Alternatives to current disposal methods;

6. Costs of such alternatives;

7. Impact of those alternatives on the use of coal and other natural resources; and

8. Current and potential utilization of such materials.

Congress gave EPA six months to complete the study required by the Bevill Amendment. EPA 

issued an initial temporary exclusion, pending a report to Congress that was eventually issued in 

1988. No further action was taken until a lawsuit was filed to compel the Agency to make a 

formal regulatory determination. EPA entered into a consent decree with all parties to that 

litigation that provided a schedule for making regulatory determinations on two separate 

categories of wastes. EPA would first make a determination regarding fly ash, bottom ash, boiler 

slag, and FGD wastes, by August 2, 1993. EPA agreed to make a determination on all other 

wastes under the Bevill Amendment by April 1, 1998, although that deadline was subsequently 

extended [Footnote 63: EPA presents the full chronology of its prior regulatory actions with 

respect to CCRs in Appenix A of its Regulatory Risk Assessment, including a complete history 

of the various determinations. See EPA, Appendix for Regulatory Impact Analysis, 4-6 (April 

30, 2010).].

In 1993, EPA issued its first official regulatory determination that regulation of CCR materials 

under Subtitle C was not appropriate for fly ash, bottom ash, FGD wastes, and boiler slag 

[Footnote 64: 58 Fed. Reg. 42,466-67.]. EPA based this determination on its conclusion that (i) 

the materials posed low risks, (ii) there were sufficient state and federal regulatory 

controls,[Footnote 65: EPA reviewed regulations in the 17 states that represented approximately 

70 percent of coal ash in the U.S., and found that all but one required operating permits, 12 had 

mandatory liner and groundwater monitoring requirements, and three states had authority to 

impose liner requirements on a case-by-case basis. 14 regulated CCRs as solid wastes, two had 

requirements based on waste characteristics, and one exempted CCRs completely. As a result, 

EPA found that “State regulatory programs are generally adequate.” Id. At 42,476.] and (iii) the 

risks from the wastes were dictated by site-specific characteristics at disposal sites, such as 

groundwater flow and soil properties, rather than uniform characteristics inherent to the residuals 

themselves, such that regulating CCR materials as hazardous wastes was neither scientifically 

sound nor justified as a matter of policy [Footnote 66: “Since [CCR] sites vary widely in terms 

of topographical, geological, climatological, and hydrological characteristics (e.g., depth to 

groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes' 

potential to leach into the groundwater and travel to exposure points is linked to such factors, it is 

more appropriate for individual States to have the flexibility necessary to tailor specific controls 

to the site or region specific risks posed by these wastes.” Id. at 42,477]. The Agency noted that 

although there were a few groundwater samples which exceeded drinking water standards, they 

would not likely lead to any human exposures at that level due to dispersion in the groundwater 

and a lack of drinking water sources downstream of coal plants or disposal sites [Footnote 67: Id. 

at 42,475.]. In addition, the agency estimated that the cost to industry of listing under subtitle C 
57

could increase from $800 million annually under the existing disposal framework to between 

$3.7 and $5 billion [Footnote 68: Id. at 42,467-68.]. 

At the time, the Agency did not take a position on regulation under Subtitle D, but when it was 

presented with the suggestion that CCR landfills and impoundments be regulated similarly to 

MSW landfills (40 CFR part 258), EPA responded that:

[w]hile the Agency believes that design and operating requirements similar to part 258 may be 

appropriate for some...[CCR] waste management units, the risks posed by...[CCR] waste 

management are site-specific. Although groundwater contamination has occurred at certain coal 

combustion waste sites, contamination has been due to a limited number of constituents, which 

are likely to attenuate and dilute to safe levels before reaching an exposure point. This is in 

contrast to municipal solid waste landfills that are subject to 40 CFR part 258. The leachate at 

these sites often contains elevated levels of a wide range of toxic pollutants, and numerous 

damages have been observed. Therefore, the Agency believes that the level of protection 

provided by the part 258 criteria may not need to be universally applied to all...[CCR] waste 

management units. It is therefore appropriate to allow the States to retain the flexibility to tailor 

requirements to site-specific or regional factors rather than establish broad Federal minimum 

requirements. It should be noted that many States have adopted regulatory requirements 

for...[CCR] waste management units comparable to the part 258 criteria. EPA will consider 

these wastes as part of the Agency’s ongoing assessment of industrial non-hazardous wastes 

under RCRA Subtitle D [Footnote 69: Id. at 42481 (emphasis added).].

EPA published its next risk assessment, for combined wastes and other non-utility fossil fuel 

wastes, in 1998 in draft form. Based on the analysis in the 1998 draft risk assessment, EPA 

issued a report to Congress recommending against Subtitle C regulation, with the possible 

exception of the agricultural use of CCRs [Footnote 70: EPA, Report to Congress Wastes from 

the Combustion of Fossil Fuels Volume 1 – Executive Summary, 3- 5 (March 1999).]. In the 

1998 draft risk assessment and the associated report to Congress, EPA concluded that risks were 

below the toxic and cancer risk levels of concern, with only arsenic generating cancer risks in 

EPA’s Monte Carlo model of greater than 1x10-6, ranging from 4x10-5 to 2x10-5 [Footnote 71: 

Id. at 3-2 - 3-3 (March 1999).]. However, EPA received numerous technical comments on the 

groundwater transport model, EPACMTP, that it was unable to address in time to meet the 

consent decree timeline for releasing its final regulatory determination on the remaining waste 

categories. As a result EPA did not base its 2000 determination on the results of the EPACMTP 

model, for fear that it was inaccurate.

EPA concluded that its 1998 leachate modeling (based on the EPACMTP model) overestimated 

generation and concentrations over time, in part because it was based on a small sample size that 

gave an overly strong weight to a single facility’s worst-case observation, and thus may not have 

accurately reflected actual leachate conditions [Footnote 72: EPA, Ground-Water Pathway 

Human Health Risk Assessment, p. 8-2 1998 (Revised Draft Final).]. Therefore, EPA instead 

relied on surveys of hazardous constituents in CCRs, noting that samples of CCR wastes rarely 

exceeded hazardous waste characteristic levels:

Fossil fuel wastes infrequently exceed the hazardous waste characteristic. For comanaged 

wastes, 2% (1 of 51 samples) exceeded the characteristic level. For individual wastes streams, 

0% of the coal bottom ash, 2% of the coal fly ash, 3% of the coal flue gas desulfurization, and 

7% of the coal boiler slag samples that were tested exceeded the characteristic level [Footnote 

73: 65 Fed. Reg. at 32,222.].

At the time, the only concern expressed by the Agency related to the potential for the leaching of 
58

arsenic out of the CCR materials. However, in 1993 EPA found that improvements in state and 

federal regulation would likely address the outstanding concerns:

Nonetheless, given most of the states’ current regulatory capabilities and the evidence that basic 

controls are increasingly being put in place by the states and facilities (see RCRA section 

8002(n), which directs EPA to consider actions of state and other federal agencies with a view to 

avoiding duplication of effort), EPA believes that subtitle D controls will provide sufficient 

clarity and incentive for states to close the remaining gaps in coverage, and for facilities to 

ensure that their wastes are managed properly [Footnote 74: Id. at 32,217.]. 

In addition to the preceding considerations, EPA based its 2000 decision, in part, on a desire to 

not reduce the beneficial reuse of CCRs, recognizing that a Subtitle C listing had the potential to 

negatively impact such use:

Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, 

given the central concern under the statute for protection of human health and the environment. 

However, given our conclusion that the subtitle D approach here should be fully effective in 

protecting human health and the environment, and given the large and salutary role that 

beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision 

today that [S]ubtitle C regulation is unwarranted in light of our decision to pursue a [S]ubtitle D 

approach [Footnote 75: Id.].

In sum, EPA’s prior evaluations of the hazards posed by CCR materials clearly demonstrate that 

Agency had concluded that these materials are not “typically or frequently” hazardous. Yet, EPA 

dismisses these prior determinations here without sufficient justification why these materials 

suddenly present a hazard to human health or the environment.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-6

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2

Comment Excerpt Text:

Factors One and Two Show Improvement in Present Disposal and Utilization Practices 

Despite Increased CCR Volumes 

The first two factors, amount and disposal of CCRs, show a decline in the proportionate share of 

CCRs being placed in surface impoundments with a markedly greater proportion being placed in 

landfills or being beneficially used. EPA’s estimates of CCRs generated by coal-fired electric 

generating plants highlight the improvements in CCR disposal or uses in 2008 compared to those 

in 1995: "
59

[See original comment for table]

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

that in the “mid-1990s” between “62 and 71 million tons of CCRs were generated by coal-fired 

electric power plants.” 75 FR at 35151/1. On the other hand, the Notice states that in 1995, 26.2 

million tons were landfilled, 53.2 million tons were disposed of into surface impoundments, 

another 26.2 million tons were beneficially used, and 9 million tons were placed in mines, id., 

which amounts to a total of 114.6 million tons. That total is approximately 42 million tons more

than the maximum of 71 million tons EPA estimated was generated yearly by electric power 

plants in the mid-1990s. The numbers in the above table were calculated by multiplying the 1995 

disposal and uses percentages (id.) by 71 million tons.]Even though the total amount of electric 

plant CCRs increased by over 90% between the two periods, the amount placed in surface 

impoundment declined by a little more than 10%, while the amounts going into landfills or being 

beneficially used nearly tripled. See 75 FR at 35156/2 (noting “significant increase” in beneficial 

use). The trend shows a lower health risk under existing regulation than was presented with the 

2000 Determination, and thus supports continuation of the Bevill exemption for CCRs.

Response: The Agency acknowledges and appreciates this comment. In the final rule, the 

Agency provides a revised description of these generation and usage rates (see Unit I Executive 

Summary and Unit XII of today’s preamble discussion. The commenter is referred to the 

Regulatory Impact Section of today’s rule as well as the Regulatory Impact Analysis supporting 

this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08248-1

Organization1:Institute for Policy Integrity

Commenter1: Jason A. Schwartz

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

I. EPA Should Consider Costs and Benefits when Determining Whether to Regulate CCRs under 

Subtitle C 

RCRA clearly gives EPA discretion to determine whether regulation of CCRs under Subtitle C is 

“unwarranted.” Given Executive Order 12,866, this determination should include prudent use of 

cost-benefit analysis. The Bevill Regulatory Determinations should be reversed if the net societal 

benefits from regulation under Subtitle C are higher than other regulatory options. 

RCRA Gives EPA Substantial Discretion to Regulate CCRs under Subtitle C 

The statutory authority to regulate CCRs under Subtitle C of RCRA is given by subsection 

3001(b)(3)(C): 
60

[T]he Administrator shall, after public hearings and opportunity for comment, either determine to 

promulgate regulations under [Subtitle C] for each waste listed in subparagraph (A) [including 

CCRs] of this paragraph or determine that such regulations are unwarranted. The Administrator 

shall publish his determination, which shall be based on information developed or accumulated 

pursuant to such study, public hearings, and comment, in the Federal Register accompanied by 

an explanation and justification of the reasons for it. 

This determination is known as the “Bevill Regulatory Determination.” The relevant information 

that the Administrator must use includes a study mandated by subsection 8002(n): 

The Administrator shall conduct a detailed and comprehensive study and submit a report on the 

adverse effects on human health and the environment, if any, of the disposal and utilization of 

[CCRs]. Such study shall include an analysis of—

(1) the source and volumes of such material generated per year; 

(2) present disposal and utilization practices; 

(3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials; 

(4) documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved; 

(5) alternatives to current disposal methods; 

(6) the cost of such alternatives; 

(7) the impact of those alternatives on the use of coal and other natural resources; and 

(8) the current and potential utilization of such materials. 

In furtherance of this study, the Administrator shall, as he deems appropriate, review studies and 

other actions of other Federal and State agencies concerning such material and invite 

participation by other concerned parties, including industry and other Federal and State agencies, 

with a view toward avoiding duplication of effort.... 

These two subsections are the only statutory guidance that EPA is given in making the Bevill 

Regulatory Determination. [Footnote 1: It should be noted that, for example, there is no 

requirement that CCRs meet the statutory or regulatory definitions of “hazardous waste.” The 

directive in subsection 8002(n) of the Resource Conservations and Recovery Act to submit a 

study on the “the adverse effects on human health and the environment” bears some relation to 

part of the statutory definition of “hazardous waste” in subsection 1004(5) (“a solid waste, or 

combination of solid wastes, which because of its quantity, concentration, or physical, chemical, 

or infectious characteristics may—(A) cause, or significantly contribute to an increase in 

mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a 

substantial present or potential hazard to human health or the environment when improperly 

treated, stored, transported, or disposed of, or otherwise managed.”). However, this merely 

confirms that these statutory provisions share the goal of protecting the environment and human 

health. 2 Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 (2009).]

Recently, in Entergy v. Riverkeeper, the Supreme Court affirmed that just because a statute does 
61

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

cost-benefit analysis. [Footnote 2: Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 

(2009).] Entergy more generally supports the proposition that broad statutory language allows 

EPA to weigh the social costs and benefits of regulation unless doing so is directly contrary to 

the statute. 

In this case, the broad statutory mandate is contained in subsection 3001(b)(3)(C). EPA need 

only determine whether or not Subtitle C regulations for CCRs would be “unwarranted.” While 

this determination must be based on all the information accumulated in the course of the required 

study, public hearings, and public comments, Congress mandated several substantive areas of 

consideration in subsection 8002(n). These areas include environmental damage and adverse 

human health effects [Footnote 3: Resource Conservation and Recovery Act §§ 8002(n), (n)(3), 

42 U.S.C. § 6982 (1976) [hereinafter RCRA].] and the cost of alternatives to current disposal 

methods. [Footnote 4: Id. at §§ 8002(n)(5)-(6).] These two factors encompass the health and 

environmental benefits of proposed regulations as well as the costs of the alternative disposals 

that would be mandated by the potential regulations. The other criteria are all areas that would 

need to be analyzed in any reasonable cost-benefit analysis.[Footnote 5: Id. at §§ 8002(n)(1), (2) 

and (8) are all relevant to designing a baseline for a cost-benefit analysis. RCRA § 8002(n)(4) is 

relevant to determining the costs in the baseline. RCRA § 8002(n)(7) contains ancillary costs and 

benefits of the rule.] As a result, EPA would be allowed to base its determination under 

subsection 3001(b)(3)(C) on a prudent cost-benefit analysis. 

In the past, EPA has not explicitly interpreted these sections of RCRA in this manner. [Footnote 

6: For example, the 1993 Bevill Regulatory Determination declined to regulate CCRs from coalfired electric utilities under Subtitle C because of "limited risks. . . and the existence of generally 

adequate State and Federal regulatory programs." 58 Fed. Reg. 42,466. Of course, this could be 

reformulated to be a claim about the net benefits of Subtitle C regulation.] But under the 

Supreme Court doctrine established by Chevron v. NRDC, courts will uphold any reasonable 

agency interpretation of an ambiguous term, regardless of whether it is the “best” or “most 

reasonable” interpretation. [Footnote 7: Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837, 843-844 (1984).] So long as the reinterpretation is neither arbitrary nor capricious, 

it is perfectly acceptable for EPA to issue another reasonable interpretation of the relevant 

sections of RCRA. [Footnote 8: See Nat’l Cable & Telecomm. Assoc. v. Brand X Internet 

Servs., 545 U.S. 967 (2005) (explaining that Chevron review applies to agency changes of legal 

interpretations, quoting Chevron, 467 U.S. at 865-66); id. at 981-82 (Rehnquist, J., concurrent in 

part, dissent in part) (explaining that changes in administration are legitimate grounds for 

changing agency interpretations).] 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08261-2

Organization1:Black Warrior Riverkeeper, Inc.
62

Commenter1: Eva Dillard

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

1.CCRs Are Hazardous Waste Within the Meaning of RCRA. 

In enacting RCRA, Congress sent “a clear and unambiguous message to the regulated 

community and the Environmental Protection Agency: reliance on land disposal of hazardous 

waste has resulted in an unacceptable risk to human health and the environment.” See 1 H.R.

Conf. Rep. 98-1133 p. 3. As a result, Congress observed “[l]and disposal should be used only as 

a last resort and only under conditions which are fully protective of human health and the 

environment.” Id. 

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

indisputable and well-documented. As studies have progressed, not only risks but actual damages 

have been proven in numerous cases, representing a variety of situations.8 While Congress may 

not have understood that CCRs were hazardous when RCRA was enacted, there is absolutely no 

question today that these hazards exist; moreover, they can no longer be ignored. EPA’s own 

data, not to mention the data obtained from various other scientific studies, establishes that coal 

ash poses a substantial present and potential threat to human health and the environment. 

While RCRA does not include a statutory definition of “hazardous waste,” Congress authorized 

EPA to determine the criteria and characteristics for identifying a particular waste as 

“hazardous.”9 EPA regulations, in turn, provide that a waste is “hazardous” if it exhibits any one 

of four characteristics of hazardous waste, one of which is toxicity.10 Moreover, EPA is 

required to list a solid waste as “hazardous” upon determining that the waste meets one of the 

four characteristics.

Response: The Agency acknowledges and appreciates this comment. The commenter is also 

referred to the preamble discussion in Unit IV of the rule relating to the Bevill determination, as 

well as the discussion on statutory authority found in Unit II of the preamble discussion. The 

detailed process of which the commenter speaks is not at issue here because the Agency is not 

making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-4

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:
63

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4 3.1.2

Comment Excerpt Text:

EPA's 1993 And 2000 Bevill Determinations Regarding CCRs 

On August 9, 1993 , EPA published is Regulatory Determination for the first category of CCR 

wastes (58 Fed. Reg. 42,466) and determined that regulation under Subtitle C of RCRA for these 

wastes was not wal1'anted. On May 22, 2000, EPA published its Regulatory Determination for 

the remaining CCRs and concluded that the remaining wastes were largely identical to the highvolume monofilled wastes, which remained exempt based on the 1993 Regulatory 

Detelmination. The high volume wastes simply dominate the waste characteristics even when comanaged with other wastes, and thus, the May 2000 Regulatory Determination addressed not 

only the remaining wastes, but effectively reopened the decision on CCRs that went to monofills. 

While some risks were aclmowledged to be associated with these wastes, EPA fmiher concluded 

that significant improvements were being made in waste management practices due to increasing 

state oversight. On this basis, EPA chose to retain the Bevill exemption for CCRs, and the wastes 

would be regulated under Subtitle D of RCRA as solid wastes. 

The Bevill Amendment to the Clean Air Act established a one-time special process for making 

Bevill regulatory determinations for large volume, low toxicity wastes such as CCRs, and the 

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

statutory-mandated Bevill process must be followed before a Bevill exemption determination can 

be reversed. To reverse a Bevill exemption determination for a waste EPA must: 1) study the 

waste pursuant to eight study factors, 2) submit a repOli to Congress, 3) conduct public hearings 

and provide an opportunity for comment on the report, and 4) if EPA determines that a change in 

the Bevill exemption for the waste is warranted, then it must engage in a notice and comment 

regulatory procedure to promulgate the regulations. EPA has not implemented this procedure 

since the 1993 and 2000 determinations. Therefore, at this time EPA cannot legally reverse its 

1993 and 2000 Regulatory Determinations for CCRs and pursue a Subtitle C hazardous waste 

designation for CCRs. For these reasons Cliffs urges EPA to abandon its consideration of a 

Subtitle C determination for CCRs in this rulemaking. 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-7

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6 3.1.2 3.4.1.4.6
64

Comment Excerpt Text:

The Subtitle C Proposal To Regulate Inactive And / Or Previously Closed Surface 

Impoundments Is Unlawful 

EP A proposes to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive CCR 

surface impoundments (75 Fed. Reg. at 35,177). Even if such impoundments do not receive 

CCRs after the effective date of the rule, EPA would require these impoundments to close in 

compliance with the proposed rule. EPA attempts to tie this requirement to a new theory based 

on "passive leaking;" a theory that the federal cOUli of appeals has struck down in several 

circuits. However, EPA lacks jurisdiction under RCRA over such impoundments, and its attempt 

to retroactively extend regulation over them is arbitrary and capricious because it is inconsistent 

with EPA's prior rulemakings. 

The language of RCRA contemplates the regulation only of units that operate after the effective 

date of the relevant RCRA rulemaking. EPA itself admitted in 1980 that: 

RCRA is written in the present tense and its regulatory scheme is organized in a way which 

seems to contemplate coverage only of those facilities which continue to operate after the 

effective date of the regulations. The [then] Subpmi D standards and [then] Subpmi E permitting 

procedures are not directed at inactive facilities. 

43 Fed. Reg. 58,984. Because the statutory language is clear that only operating facilities should 

be subject to what are now the Subtitle C hazardous waste regulatory requirements, EPA's 

proposal to regulate previously closed and inactive impoundments containing CCRs is unlawful. 

EPA also recognized in 1980 that: 

Enormous technical, legal, and economic problems would arise if these standards were to be 

directly applied to inactive facilities [i.e., those facilities which have ceased operating prior to the 

effective date of the Subtitle C regulations] and all such facilities were required to upgrade. Such 

an approach also does not seem equitable because of the enormous difficulty of bringing a closed 

facility into compliance, and because the present owner of land on which an inactive site is 

located might have no connection (other than present ownership of the land) with the prior 

disposal activities. 

Id. For these reasons also, EPA decided in 1980 not to regulate closed or inactive facilities that 

were managing wastes being brought into the Subtitle C management system. 

EP A provides no meaningful justification in its CUlTent proposal for reversing its earlier 

decision not to subject such units to regulation. In 1980, when EPA promulgated the Subtitle C 

rules, the agency decided, based on a multitude of reasons (legal, practical, economic, equitable, 

and technical) that the regulations and permitting would not apply to the thousands of closed and 

inactive surface impoundments in essentially every industry in America. 

Now, in an about-face, EPA reverses course and tries unsuccessfully to justify the retroactive 

nature ofits current proposal by arguing in just a few sentences that the units contain large 

amounts of CCRs and generally refers to the "significant risk" these units impose to justify the 

change in regulatory approach (75 Fed. Reg. at 35,177). EPA's proposal to regulate closed and 
65

inactive surface impoundments containing CCRs is arbitrary and capricious, and should be 

abandoned in the final rule. 

Response: In this rule, the Agency is regulating under RCRA subtitle D, “inactive CCR surface 

impoundments” as defined in section 257. 53 of the CCR rule. The commenter is also referred 

to Unit VI, in particular the “applicability” section of that unit which contains a detailed 

discussion of the Agency’s rationale for regulating these units. 

Comment Number: EPA-HQ-RCRA-2009-0640-08841-22

Organization1:Deseret Generation and Transmission Co-operative

Commenter1: Howard Vickers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations For CCRs 

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 

under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08841-8

Organization1:Deseret Generation and Transmission Co-operative

Commenter1: Howard Vickers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
66

Deseret is a member of the National Rural Electric Cooperative Association (NRECA) and we 

agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of RCRA 

is arbitrary and capricious and in direct contravention of the Bevill Amendment. 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08850-2

Organization1:Lansing Board of Water & Light (BWL)

Commenter1: Lansing Board of Water & Light (BWL)

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level 

and EPA should defer any action unless and until Congress amends RCRA to provide specific 

authority for EPA to regulate CCR disposal. 

Response: The Agency acknowledges and appreciates this comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-2

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

The proposal's Subtitle C option would constitute an impermissible reversal of the final 2000 

Regulatory Determination. Accordingly, EPA should pursue regulation under Subtitle D.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-32

Organization1:Prairie State Generating Company, LLC (PSGC)
67

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.4.6

Comment Excerpt Text:

Retroactive Application of RCRA (40 C.F.R, §§ 264.1300 and 265.1300) For the first time in 

EPA's thirty-year implementation of RCRA, EPA proposes to extend RCRA Subtitle C 

jurisdiction to previously closed and/or inactive facilities. 75 Fed. Reg. at 35177. Such an 

approach is not only unlawful, but inconsistent with EPA's administration of the RCRA program: 

Subtitle C regulations are prospective in nature and are not directed at inactive facilities EPA's 

decision to overturn thirty years of regulatory precedent turns on the theory that the definition of 

"regulatory disposal" encompasses "passive leaking" and includes "the continued release of 

constituents to surrounding soil and groundwater through the continued infiltration of 

precipitation through inappropriately closed CCR impoundments .... " Id. at 35177. However, 

EPA fails to recognize that such an interpretation bas been rejected by the courts. Several United 

States Courts of Appeals soundly rejected the interpretation EPA is proposing. See e.g., Carson 

Harbor Village v. Uno cal Corp., 270 F.3d 863 (9th Cir. 2001); ABB Industrial Systems v. Prime 

Technology, 120 F.3d 351, 358 (2nd Cit'. 1997); United States v. CDMG, 96 F.3d 706, 711 (3rd 

Cir. 1996); and Joslyn Manufacturing Co. v. Koppers Co., 40 F.3d 750, 762 (5th CiT. 1994). 

EPA's decision to reach back to inactive surface impoundments is therefore arbitrary, capricious, 

and unlawful.

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency 

has also determined that regulation of inactive CCR surface impoundments as defined in 

section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting 

this rule. The commenter is referred to the applicability section for a complete discussion. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-9

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

The essential flaw in the Subtitle C option is that it is premised on the notion that EPA is at 

liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation under 

Subtitle C of RCRA. Because the statute does not authorize EPA to reverse its final Regulatory 

Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even 

assuming for purposes of argument that the statute did authorize such reversal, EPA's proposal to 

regulate CCRs under Subtitle C does not comport with the Bevill Amendment's statutorily 
68

prescribed decision-making process and would be arbitrary and capricious. For example, the 

Subtitle C option would adversely impact CCR beneficial use and impose unwarranted and 

excessive costs on the utility industry.

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. Furthermore, with respect 

to beneficial use, the commenter is referred to Units IV and VI of today’s preamble for a 

complete discussion on the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09334-10

Organization1:Manitowoc Public Utilities (MPU)

Commenter1:Nilaksh Kothari

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle C option actually represents an unprecedented expansion of RCRA's Subtitle C 

jurisdiction by extending hazardous waste controls to previously closed, inactive CCR disposal 

units. This is the most far-reaching application of hazardous waste disposal controls in EPA's 30-

year implementation of the federal program and would subject CCRs to more onerous disposal 

controls than for any other hazardous waste regulated under Subtitle C. 

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency 

has also determined that regulation of inactive CCR surface impoundments as defined in 

section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting 

this rule. The commenter is referred to the applicability section of the preamble for a complete 

discussion. 

Comment Number: EPA-HQ-RCRA-2009-0640-09425-2

Organization1:Alstom Power, Inc.

Commenter1: Robert G. Hilton

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.3.1

Comment Excerpt Text:

Hazard versus Non-Hazardous
69

Coal combustion residues are not a listed hazardous waste. Coal combustion residues, either as 

produced or properly managed, do not exhibit or meet any of the criteria established by EPA for 

a characteristic hazardous waste. Alstom has tested virtually hundreds of coal combustion 

residues and found this to be the case. Therefore, the imposition of a generic hazardous status is 

completely inappropriate.

Further, we find that the decision to consider the byproducts as hazardous based on a structural 

failure of a dike is inconsistent with EPA historical findings. Other byproducts, such as tailings 

and slag, have experienced similar structural failures and slides and the materials involved have 

not been deemed generically hazardous for an entire industry as a result.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09427-5

Organization1:San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter1: Joseph G. Eutizi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

San Miguel is a member of the National Rural Electric Cooperative Association (NRECA) and 

we agree with NRECA’s position that EPA’s proposal to regulate CCRs under Subtitle C of 

RCRA is arbitrary and capricious and in direct contravention of the Bevill Amendment. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09427-9

Organization1:San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter1: Joseph G. Eutizi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Cannot Promulgate Subtitle C Regulations For CCRs

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation 
70

under RCRA Subtitle C. Even setting aside EPA’s failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal’s Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. The commenters concerns with the Agency not complying with the process 

requirements for making a Bevill Determination are premature at this point in time in that the 

Agency is deferring a Bevill Determination on CCRs.

Comment Number: EPA-HQ-RCRA-2009-0640-09712-10

Organization1:Basin Electric Power Cooperative (BEPC)

Commenter1: Claire M. Olson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

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

C 

The Bevill Amendment does not provide EPA with the authority to revoke its previous final 

determination in its Report to Congress that materials generated from the combustion of coal are 

to be regulated under subtitle D, rather than subtitle C. 

In 1980, the Bevill Amendment added provisions to the Resource Conservation and Recovery 

Act (RCRA)' that required the EPA Administrator to do three things with regard to coal ash and 

coal combustion residuals (CCRs): 1) conduct a study and submit it to Congress to determine the 

amounts, impacts, disposal, and usesfor CCRs;2 2) determine whether or not to regulate CCRs as 

a hazardous waste under subtitle C of RCRA;3 and, in the meantime, 3) regulate CCRs as a nonhazardous waste until the final determination whether or not to regulate CCRs as a hazardous 

waste under subtitle Cwas made.4 

The study of CCRs to be submitted to Congress evaluated the following eight factors: 1) the 

source and volumes of CCR materials generated per year; 2) present disposal and utilization 

practices; 3) potential danger, if any, to human health and the environment from disposal and 

reuse of such materials; 4) documented cases in which danger to human health or the 

environment from surface runoff or leachate has been proved; 5) alternatives to current disposal 

methods; 6) costs of such alternatives; 7) the impact of those alternatives on the use of coal and 

other natural resources; and 8) the current and potential utilization of such materials.5 
71

After the study was completed and submitted to Congress, the Bevill Amendment also required 

that the EPA Administrator "shall, after public hearings and opportunity for comment, either 

determine to promulgate regulations under this subchapter6 [footnotes: 1 42 U.S.C . 6901 et seq.; 

2 RCRA 8002(n); 42 U.S.C. 6982(n); 3 RCRA 3001(b)(3)(C); 42 U.S.C. ? 6921(b)(3)(C); 4 

RCRA 3001(b)(3)(A); 42 U.S.C. 6921(b)(3)(A); 5 RCRA 8002(n), 42 U.S.C. 6982(n). The 

Committee on Environment and Public Works of the United States Senate and the Committee on 

Energy and Commerce of the United States House of Representatives were the Senate and House 

Committees upon which the sponsors of the "Bevill Amendment," Senator Lloyd Benston and 

Congressman Thomas Bevill, sat; 6 "[T]his subchapter" is subtitle "C," the hazardous waste 

provisions of RCRA at RCRA 3001-3023, 42 U.S.C . 6921-6939e.] [i.e., under subtitle C of 

RCRA as a hazardous waste] for each waste listed in subparagraph (A)7 of this paragraph or 

determine that such regulations are unwarranted."8 

Subparagraph (A) forbid the regulation of coal ash materials as hazardous wastes under subtitle 

"C"9 until at least six months after the date of submission of the study of coal combustion 

materials under 42 U.S.C. 6982(n) to Congress, and the "promulgation of regulations in 

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

As summarized below, EPA and the EPA Administrator previously have conducted the studies 

and made the findings and report to Congress they were required to complete and submit under 

42 U.S.C. 6982(n). Additionally, the EPA and the EPA Administrator previously have made the 

mandated determinations that EPA was required to make under 42 U.S.C. 6921(b)(3)(A) and 

6921(b)(3)(C) about whether to regulate coal ash combustion materials as a hazardous waste 

under subtitle C. 

The EPA determined that the breadth of the coal combustion residuals report was such that it 

would be difficult to complete the study under 42 U.S.C. 6982(n) in time to meet the October 

21,1982 statutory deadline," so EPA decided to divide the statutorily-mandated Report to 

Congress into two phases. 

The first phase addressed the four large-volume CCRs generated by coal-fired electric utilities 

(including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials). This Report 

was submitted to Congress on March 8, 1988 ("1988 Report to 12 Congress"). It concluded that 

the large-volume coal combustion waste streams considered in the first phase (fly ash, bottom 

ash, boiler slag, and flue gas emission control waste) generally do not exhibit hazardous 

characteristics under RCRA.13 Accordingly, EPA stated that it did not intend to regulate those 

four large-volume coal combustion waste streams.14 This initial Report went on to encourage 

the utilization of coal combustion wastes to the extent that such utilization could be done in an 

environmentally safe manner.15 After the study required by 42 U.S.C. 6982(n) was completed, 

EPA made the determination required by 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C) concerning 

whether or not to regulate the four large-volume CCRs under subtitle C: "EPA concludes that 

Subtitle C is inappropriate to address the problemsassociated with these wastes and that the site 

or region specific State approach is ' [footnotes: 7 Subparagraph (A)(i) lists "Fly ash waste, 

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

combustion of coal or other fossil fuels." RCRA 3001(b)(3)(A)(i); 42 U.S.C. 6921(b)(3)(A)(i). 8 

RCRA 3001(b)(3)(C); 42 U.S.C. 6921(b)(3)(C). 9 RCRA 3001-3023,42 U.S.C. 6921-6939e. 10 
72

RCRA 3001(b)(3)(A); 42 U.S.C. 6921(b)(3)(A). 11 RCRA 8002(n), 42 U.S.C. 6982(n), required 

that the study and report of the eight factors lised in that subsection be completed and submitted 

to the Senate and House committees Senator Benston and Congressman Bevill sat on no later 

"than 24-months after October 21, 1980." 12 See 1988 Report to Congress at ES-2, 58 Fed. Reg. 

42466, 42467 (Aug. 9, 1993). 13 1988 Report to Congress at ES-6. 14 Id.15 Id. at ES-8.] 

appropriate for addressing the limited human health and environmental risks involved with the 

disposal of [these four large-volume CCR] wastes."16 

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

including the above CCRs when co-managed with certain low volume wastes, and was reported 

to Congress in 1999." Again EPA made the required finding under 42 U.S.C. 6921(b)(3)(A) and 

6921(b)(3)(C), and determined once again that such CCR wastes are more appropriately 

regulated under subtitle D rather than subtitle C of RCRA.18 

In sum, EPA has conducted the studies required by 42 U.S.C. 6982(n), and made the 

determinations required by 42 U.S.C. 6921(b)(3)(A) and 6921(b)(3)(C) for CCRs. The 

determination was that CCRs are to be regulated under subtitle D, not subtitle C. Congress did 

not give EPA statutory authority to reconsider this [footnotes: l6 58 Fed. Reg. at 42477. EPA 

gave the following reasons for this determination under 42 U.S.C. 6921(b)(3)(A) and 

6921(b)(3)(C): After reviewing industry practices and current State and Federal regulation, EPA 

reviewed the alternative scenario of regulating the four large-volume [CCR] wastes under 

Subtitle C. First, it was recognized that coal combustion wastes rarely exceed the RCRA 

characteristics for hazardous waste, and therefore, that most coal combustion wastes would not 

be subject to Subtitle C controls unless they were listed as hazardous wastes. Furthermore, it was 

noted that even if these wastes were listed as hazardous, and therefore, regulated under Subtitle 

C, such an approach would be inappropriate for these wastes. A Subtitle C system would require 

coal combustion units to obtain a Subtitle C permit (which would unnecessarily duplicate 

existing State requirements) and would establish a series of waste unit design and operating 

requirements for these wastes,which would generally be in excess of requirements to protect 

human health and the environment. For example, if such wastes were placed in the Subtitle C 

universe, all ash disposal units would be required to meet specific liner and monitoring 

requirements. Since [CCR] sites vary widely in terms of topographical, geological, 

climatological, and hydrological characteristics (e.g., depth to groundwater, annual rainfall, 

distance to drinking water sources, soil type) and the wastes' potential to leach into the 

groundwaterand travel to exposure points is linked to such factors, it is more appropriate for 

individual States to have the flexibility necessary to tailor specific controls to the site or 

regionspecific risks posed bythese wastes. 58 Fed. Reg. at 42477. l7 1999 Report to Congress at 

ES1-2, and 65 Fed. Reg. 32214, 32218 (May 22, 2000). 18 EPA drew the following conclusion : 

The Agency has concluded these wastes do not warrant regulation under subtitle C of RCRA and 

is retaining the hazardous waste exemption under RCRA section 3001(b)(3)(C) [42 U.S.C. 

6921(b)(3)(C)]. However, EPA has also determined national regulations under subtitle D of 

RCRA are warranted for coal combustion wastes when they are disposed in landfills or surface 

impoundments, and that regulations under subtitle D of RCRA (and/or possibly modifications to 

existing regulations established under authority of the Surface Mining Control and Reclamation 

Act (SMCRA)) are warranted when these wastes are used to fill surface or underground mines. 

65 Fed. Reg. at 32214.] determination anywhere in 42 U.S.C. 6921(b)(3)(A), 6921(b)(3)(C), 
73

6982(n), or in any other provision of the Bevill Amendment or RCRA. Reconsideration of 

whether CCRs should be regulated under subtitle C rather than subtitle D as attempted in this 

rulemaking is therefore barred under several established provisions of law. 

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

implements the two-prong test set forth in Chevron to review the validity of an administrative 

agency's "construction of the statute which it administers."20 Under the first prong, the court 

must examine first whether Congress has expressed a clear intent with regard to the particular 

issue in dispute.21 If there is an unambiguously expressed congressional intent, both the court 

and the agency must comply.22 

In this case, EPA's attempt to reconsider whether to regulate CCRs under subtitle C violates the 

unambiguously expressed congressional intent that there be one such determination which 

becomes final when promulgated and reported to Congress. EPA has completed the required 

study, and made the mandatory determination required by 42 U.S.C. 6921(b)(3)(A) and 

6921(b)(3)(C) concerning whether to regulate CCRs under subtitle C as a hazardous waste. The 

Bevill Amendment does not provide for a reconsideration of that determination more than 30 

years after the statute was enacted, and more than 20 years after EPA's determination in 1988 

that CCRs should not be regulated under subtitle C. EPA's June 21, 2010 CCR rulemaking, 

therefore, fails the first prong of the Chevron test: it is counter to the clear intent of Congress 

expressed in the statute. Any change to this statutorily created process and determination, if it is 

to be made, must be made by Congress, not by EPA as the regulating agency. 

Second, under the second prong of Chevron,23 Congress's failure to grant an agency a given 

power is not an ambiguity as to whether that power has, in fact, been granted. On the contrary, a 

statutory silence on the granting of a power is a denial of that power to the agency.24 It is a 

fundamental principle of administrative law that an agency's authority to act must come directly 

from Congress. Absent such authority, an agency may not act.25 EPA has already acknowledged 

that the Bevill Amendment does [footnotes: 19 467 U.S. 837, 842-43 (1984). 20 Id. At 842. 21 

Id. 

22 Id. at 842-43. 23 Id. at 843. 24 American BusAssn v. Slater, 231 F.3d 1, 8 (D.C . Cir. 2000) 

(Sentelle, J., concurring) (emphasis added). 25 See U.S. Telecom Assn v. FCC, 359 F.3d 554, 

566 (D.C. Cir. 2004) ([S]tatutory silence simply leaves th[e] lack of authority untouched. In 

otherwords, the failure of Congress to use Thou Shalt Not language doesn't create a statutory 

ambiguity of the sort that triggers Chevron deference.); Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 

(D.C. Cir. 1995) ("We refuse . . . to presume a delegation of power merely because Congress has 

not expressly withheld such power."); Ry. Labor Executives' Ass'n v. Nat7 Mediation Bd., 29 

F.3d 655, 671 (D.C. Cir. 1994) (en banc) ("Were courts to presume a delegation of power absent 

an express withholding of such power, agencies would enjoyvirtually limitless hegemony, a 

result plainly out of keeping with Chevron and quite likely with the Constitution as well.") 

(emphasis in original); Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) ("A `gap' is not 

created in a statutory scheme merely because a statute does not restate the truism that States may 

not preemptfederal law."); Aid Assn for Lutherans v. USPS, 321 F.3d 1166,1174-75 (D.C. Cir. 

2003) ("[T]he Postal Service's position seemsto be that the disputed regulations are permissible 

because the statute does not expresslyforeclose the construction advanced by the agency. We 

reject this position as entirely untenable under well-established case law. . .").] not include a 
74

process for Agency reversal of the CCR final Regulatory Determinations: in response to an 

inquiry from Representative Markey following the Kingston ash release regarding whether and 

how EPA could reverse its final CCR RegulatoryDeterminations for CCRs, EPA's then-Acting 

Associate Administrator readily acknowledged that RCRA does not specifically spell out the 

process by which we [would] revise the Regulatory Determination ." See Jan. 30, 2009 letter 

from Joyce K. Frank, EPA Acting Associate Administrator, to Rep. Markey, Chair, House 

Committee on Energy and Commerce, at 3. In sum, RCRA does not grant EPA regulatory 

authority to revise its regulatory determination that CCRs are to regulated under subtitle D, 

rather than subtitle C. 

Third, when Congress has intended to grant EPA authority to revise or periodically review a 

regulatory standard or determination, it has expressly given that statutory authority. For example, 

under the Clean Air Act, Congress has directed the EPA to periodically review, revise, and 

publish air quality criteria for pollutants (42 U.S.C. 7408), to periodically review, revise, and 

publish the statutory list of hazardous air pollutants (42 USC 7412(b)(2)), and, and at five year 

intervals, to complete a thorough review of the criteria for pollutants published under 42 U.S.C. 

7408 and the national ambient air quality standards promulgated under 42 U.S.C. 7409 and make 

such revisions as may be appropriate . Likewise, under the Clean Water Act, Congress has 

directed the EPA to review and revise its published water quality standards from time to time (33 

U.S.C. 1314(a)), to review its published regulations for effluent limitations annually and revise 

them if appropriate (33 U.S.C. ?1314(b)), to from time to time review, revise, and publish 

information on the processes or operating methods which result in the elimination or reduction of 

the discharge of pollutants (33 U.S.C. 1314(c)), and, as technology and alternatives change, to 

revise its publishedregulations establishing Federal standards of performance for new sources of 

pollution (33 U.S.C. 1316). In sum, as these examples illustrate, when Congress intends to give 

EPA the authority to revise and reconsider, it has given the EPA Administrator explicit authority 

to do so. No such authority has been given by EPA to reconsider whether CCRs should be 

regulated under subtitle C. 

Finally, administrative issue preclusion and administrative res judicata provide an additional 

supporting rationale to bar reconsideration of this issue by EPA. In United States v. Utah 

Construction & Mining Co.,26 the seminal case on administrative res judicata, the Supreme 

Court determined that the decision of a federal administrative agency should be given preclusive 

effect "when an administrative agency is acting in a judicial capacity and resolves disputed 

issues of fact properly before it which the partieshave had an adequate opportunity to litigate."27 

The study, findings, and determination that the provisions of the Bevill Amendment required 

EPA to make concerning whether to regulate CCRs under subtitle C as a hazardous waste were 

more quasi-judicial than [footnotes: 26 384 U.S. 394 (1966). 27 Id. at 422.] quasi-legislative in 

nature. It was not a rule-making. The study required particular fact-finding, and gave adequate 

opportunity to all members of the public to participate in this decision, and to ask for 

reconsideration and to appeal EPA's ultimate final decision not to regulate CCRs under subtitle 

C. Further, even if the traditional rules of res judicata do not fit exactly to the particular unique 

administrative actions and determinations that the Bevill Amendment mandated EPA to make, 

those rules support the basic underlying policy that the common law doctrine of res judicata 

evolved to prevent: that is, to prevent the same parties from re-litigating the same facts and 

issues that have alreadybeen determined in a prior administrative proceeding.
75

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed review process of which the commenter speaks is not at 

issue here because the Agency is not making a final Bevill determination.

Comment Number: EPA-HQ-RCRA-2009-0640-09870-4

Organization1:Otter Tail Power Company 

Commenter1: W. Uggerud

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

To be honest, I am offended at the potential over-reach by the federal government that would 

result from classifying coal ash as hazardous . The EPA itself has previously conducted studies 

and has issued two reports to Congress concluding that coal ash is not hazardous. The position 

that coal ash is a nonhazardous material has been supported by letters and testimony from the 

House and Senate as well as the National Governors Association, the National Conference of 

State Legislators, the Conference of Mayors, thirty~two states, state regulatory commissions, 

state highway departments, state agricultural departments as well as countless users of coal 

combustion products. ' 

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

to the Bevill determination, as well as the discussion on statutory authority found in Unit II of 

the preamble discussion. The detailed process of which the commenter speaks is not at issue 

here because the Agency is not making a final Bevill determination. The Agency however points 

the commenter to the preamble discussion on damage cases caused by the improper 

management of CCR in Unit XI.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-40

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

A. EPA’s Position On Passive Migration Is Contradictory To Federal Case Law

EPA‘s current position that RCRA‘s definition of “disposal” applies to closed and/or inactive 
76

units has been flatly rejected by the courts. Five United States Courts of Appeals have looked 

directly at the question of whether the definition of “disposal” includes the type of passive 

migration that EPA is proposing to force into the scope of these regulations. All five courts have 

soundly rejected this interpretation. [Footnote 28: Notably, the only Administrative Law Judge 

(“ALJ”) to have considered this issue also concluded that the term “disposal” does not include 

the passive migration of hazardous waste. In re Globe Aero Ltd., Inc. and the City of Lakeland, 

1996 EPA ALJ Lexis 47 (June 4, 1996). The ALJ held that “[d]isposal is an act rather than a 

state of continued noncompliance. The fact that the waste or waste constituents may migrate 

does not provide a basis for finding a continued disposal violation.” Id. (internal citations 

omitted).”] Although these cases have considered the definition of disposal in the context of 

CERCLA, 42 U.S.C. § 9601 et seq., “the distinction is of no moment” as CERCLA specifically 

incorporates by reference RCRA‘s statutory definition of “disposal.” Delaney v. Town of 

Carmel, 55 F. Supp. 2d 237, 256 (S.D.N.Y. 1999); see also Interfaith Cmty. Org. v. Honey-Well 

Intl Inc., 263 F. Supp. 2d 796, 846 n.10 (D.N.J. 2003) (finding that although the Third Circuit‘s 

opinion in United States v. CMDG Realty Co., 96 F.3d 706 (3rd Cir. 1996), “addressed 

CERCLA liability, the Court was interpreting the RCRA definition of ?disposal‘“ and the Third 

Circuit‘s holding was therefore controlling in an assessment of RCRA liability as well). 

[Footnote 29: See CERCLA § 101(29), 42 U.S.C. § 9601(29) (“The term[] ?disposal‘ shall have 

the same meaning provided in section 1004 of the Solid Waste Disposal Act . . . .)”]

Under RCRA, “disposal” means:

[t]he discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or 

hazardous waste into or on any land or water so that such solid waste or hazardous waste or any 

constituent thereof may enter the environment or be emitted into the air or discharged into any 

waters, including ground waters.

RCRA § 1004(3), 42 U.S.C. § 6903(3). Most recently, the Court of Appeals for the Ninth Circuit 

joined four other circuit courts in rejecting the notion that the passive migration of contaminants 

through the soil falls within this statutory definition of “disposal.” See Carson Harbor Vill. v. 

Unocal Corp., 270 F.3d 863 (9th Cir. 2001). Adhering to the Supreme Court‘s admonition that 

“[i]n examining the statutory language, we . . . adhere to the ‘Plain Meaning Rule,‘“ the court 

reasoned that “[i]f we try to characterize this passive soil migration in plain English, a number of 

words come to mind, including gradual ‘spreading,‘ ‘migration,‘ ‘seeping,‘ ‘oozing,‘ and 

possibly ‘leaching.‘ But certainly none of those words fits within the plain and common meaning 

of ‘discharge, ... injection, dumping, ... or placing.‘“ Id. at 879 (ellipses in original). The Ninth 

Circuit‘s holding in Carson Harbor Vill.. therefore is directly at odds with EPA‘s proposed 

interpretation that the passive migration of constituents from previously closed CCR surface 

impoundments constitutes “disposal” under RCRA. See also Delaney, 55 F. Supp. 2d at 256 

(“the alleged passive migration of hazardous waste, through the groundwater or otherwise[,] ... 

does not constitute ?disposal‘ of hazardous waste as defined in RCRA”).

In addition, the Sixth Circuit has held that “because ?disposal‘ is defined primarily in terms of 

active words such as injection, deposit, and placing, the potentially passive words ?spilling‘ and 

?leaking‘ should be interpreted actively[.]” United States v. 150 Acres of Land, 204 F.3d 698, 

706 (2000). As there would be no human activity involved in the movement of water through 
77

closed and/or inactive CCR impoundments, EPA‘s proposed expansion of the definition of 

“disposal” to include passive migration directly contradicts the Sixth Circuit‘s holding.

The Second Circuit has similarly agreed that “[n]one of these terms [i.e., discharge, deposit, 

injection, dumping, spilling, leaking, or placing] is commonly used to refer to the gradual 

spreading of hazardous chemicals already in the ground.” ABB Industrial Systems v. Prime 

Technology, 120 F.3d 351, 358 (2d Cir. 1997). Therefore, this Circuit‘s holding would also not 

permit EPA‘s proposed expansion of “disposal” to include the gradual spreading of chemicals 

already in the ground.

In addition, the Third Circuit has held that, based on the plain meaning of the words used to 

define disposal, “the passive migration of contamination dumped in the land prior to ownership 

does not constitute disposal.” United States v. CDMG, 96 F.3d 706, 711 (3rd Cir. 1996). The 

Third Circuit noted that its conclusion was supported by the fact that the term “leaching” is not 

included in the statutory definition of “disposal.” Id. at 715. The Third Circuit‘s holding in 

CDMG rejects EPA‘s efforts to force the “passive migration” of wastes into the definition of 

“disposal.”

The Fifth Circuit has also agreed that where the plaintiff “failed to show that any hazardous 

waste ?leaked‘ or ?spilled‘ during [the defendant‘s] ownership of the property[,] a disposal did 

not occur during [the defendant‘s] ownership.” Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 

762 (5th Cir. 1994). This position is consistent with the holdings in the Second, Third, Sixth and 

Ninth Circuits, and similarly demonstrates that EPA‘s proposed passive disposal theory violates 

RCRA‘s clear statutory language.

Response: The Agency acknowledges and appreciates the comment however it is outside the 

scope of today’s rulemaking.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-41

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

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

As EPA knows, it is elementary that RCRA‘s Subtitle C hazardous waste rules have properly and 

consistently been construed as being prospective in nature. Remedial statutes such as CERCLA, 

as well as RCRA‘s imminent and substantial endangerment provision, are the congressionallyprovided statutory mechanisms that EPA has used to address historic waste management 

operations, including previously closed CCR surface impoundments. See Gwaltney of Smithfield 
78

v. Chesapeake Bay Found., 484 U.S. 49, 57 (U.S. 1987) (noting that Congress “has demonstrated 

... [through amendment of RCRA‘s citizen suit provision in 1984 to include Section 

7002(a)(1)(B)] that it knows how to avoid th[e] prospective implication [of the RCRA statute] by 

using language that explicitly targets wholly past violations.”).

The prospective nature of RCRA‘s Subtitle C regulatory program derives from the plain 

language of RCRA Section 3004(a), under which EPA is authorized to promulgate Subtitle C 

regulations, including the proposed regulations at issue here. That language provides, in pertinent 

part, that EPA is to promulgate regulations “applicable to owners and operators of facilities for 

the treatment, storage, or disposal of hazardous waste.” 42 U.S.C. § 6924(a). In contrast to 

RCRA‘s imminent hazard and citizen suit provisions where Congress specifically referenced 

“past” disposal practices, the language of Section 3004(a) makes clear that the Subtitle C 

regulations are to apply only to active, ongoing treatment, storage, and disposal operations – not 

to closed and/or inactive facilities. See, e.g., RCRA § 7002 (a)(1)(B)(authorizing a citizen suit 

against any “past or present” generator, transporter, owner, or operator of a treatment, storage, or 

disposal facility “who has contributed or who is contributing to the past or present handling, 

storage, treatment, transportation, or disposal of certain hazardous waste”).

Additionally, EPA‘s proposed interpretation of “disposal” renders the statutory phrase “past . . . 

disposal . . . of any solid or hazardous waste” in RCRA‘s imminent and substantial 

endangerment provision meaningless because, under the Agency‘s interpretation, as applied to 

CCR impoundments, there can be no “past” disposal of CCRs in impoundments, only present, 

ongoing disposal. This interpretation of the statute defies both logic and the plain language of the 

statute. See Allen Oil Co., Inc. v. Comm’r of Internal Revenue, 614 F.2d 336, 339 (2d Cir.1980) 

(“[A] statute must, if reasonably possible, be construed in a way that will give force and effect to 

each of its provisions rather than render some of them meaningless.”).

Furthermore, as the Third Circuit in United States v. CDMG noted in finding that the definition 

of disposal does not include passive migration, the term “leaching” is not included within the 

scope of the activities that constitute disposal. 96 F.3d at 715. “Leaching” is not an obscure term 

that Congress would have overlooked in drafting the definition of “disposal.” [Footnote 30: As 

EPA well knows, “leaching” is the “process or an instance of separating the soluble components 

from some material by percolation,” see Webster‘s Third New International Dictionary, 

Unabridged 1285 (Philip Babcock Gove & the Mirriam-Webster Editorial Staff eds., 1986), and

is commonly used in the environmental context to describe the type of migration of contaminants 

(i.e., “the continued release of constituents to surrounding soil and groundwater through the 

continued infiltration of precipitation”) that EPA now proposes include in its overly expansive 

interpretation of the definition of “disposal.” Id. (“Leaching of contaminants from rain and 

groundwater movement is a principal cause of contaminant movement in landfills, see Superfund 

[Exposure Assessment Manual 8 (1988)], and is the predominant cause of groundwater 

contamination from landfills, Edward Repa & Charles Kufs, Leachate Plume Management 2 

(1985).”)] Rather, inclusion of the term “leaching” in the definition of “release” under other 

provisions of the CERCLA statute demonstrates that Congress was aware of this process, 

understood it was conceptually different than “leaking” or “spilling,” and chose not to include it 

in RCRA‘s definition of “disposal.” EPA‘s proposal, which would essentially read a term into 
79

RCRA‘s definition of disposal that Congress had included in similar statutes, but chose not to 

include here, impermissibly violates fundamental canons of statutory construction.

Response: Under this rule, EPA is regulating the disposal of CCR under subtitle D of RCRA. The 

commenter is referred to Unit IV of the preamble for a discussion of this decision. 

Comment Number: TRANS-CLT-0071-1

Organization1:North Carolina Conservation Network

Commenter1:Dan Conrad

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

In my testimony today I would like to enter two items into your official record, and make a few 

brief comments in favor of coal ash regulation under Subtitle C of RARA. 

The first item I would like to enter into the record is a memo endorsed by 17 environmental 

North Carolina groups, detailing the need for coal ash regulation in North Carolina. 

The second item is a petition signed by over 1500 concerned North Carolina citizens urging that 

the EPA enact the more stringent of their two proposals, under Subtitle C of RARA. 

RCRA defines "hazardous waste" as a solid waste or combination of solid wastes, which because 

of its quantity, concentration, or physical, chemical, or infectious characteristics may, A, cause 

or significantly contribute to an increase in mortality or an increase in serious irreversible or 

incapacitating reversible illness; or B, pose a substantial present or potential hazard to human 

health or the environment when improperly treated, stored, transported, or disposed of, or 

otherwise managed. 

I'd like to draw your attention to two specific words in the statute: "may" and "or." "May" 

indicates not that an outcome must occur, but rather only that it possibly could occur. The word 

"or" establishes that only one of the two listed criteria must be met. I would submit to you that 

coal ash actually meet both criteria A and criteria B of the definition. 

Regarding criteria A, the EPA itself has concluded that 49 high hazard potential coal ash surface 

impoundments exist in the United States, 12 in North Carolina alone. According to the EPA, 

high hazard potential indicates that a failure will probably cause loss of life. It is difficult for me 

to imagine a case where loss of human life would not qualify as an increase in mortality. 

Regarding criteria B, all 13 of the coal ash ponds in North Carolina that have conducted testing 

have been found to exceed North Carolina groundwater standards. In one case, arsenic 

concentrations were measured at 44 times the primary maximum contaminant level. Again, it is 

difficult to imagine a scenario where arsenic concentrations found in contaminated groundwater 

at 44 times the federal MCL would not possibly pose a substantial present or potential hazard to 

human health or the environment. 

Under either criteria, it is evident that coal ash is encapsulated by RCRA's definition of 

hazardous waste. With that in mind, the North Carolina Conservation Network urges that at a 
80

minimum the EPA adopt the more stringent of its two current proposals, regulating coal ash 

under Subtitle C of RCRA

Response: The Agency acknowledges and appreciates the comment. 

Section 2.1.2 - RCRA Subtitle D authority (35136, 35192)

Total Number of Submissions: 20

Total Number of Comments: 28

Comment Number: EPA-HQ-RCRA-2009-0640-06275-2

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

RCRA’s existing statutory structure is not appropriate for regulating CCRs at the federal level 

and EPA should defer any action unless and until Congress amends RCRA to provide specific 

authority for EPA to regulate CCR disposal.

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

referred to Unit IV of the preamble discussion for the Agency’s rationale for promulgating a 

subtitle D rule for the management of CCR.

Comment Number: EPA-HQ-RCRA-2009-0640-06275-24

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

To The Extent That EPA Determines CCRs Warrant Federal Regulation, Congress Should 

Amend RCRA To Provide EPA With The Appropriate Tools For Promulgating And Enforcing 

Such Regulations.

The preceding section of these Comments demonstrates that the Michigan Legislature enacted a 

comprehensive statutory scheme governing the use and disposal of CCRs in Michigan. This 
81

statutory scheme authorized MDNRE to promulgate regulations that are tailored to CCRs and 

that ensure CCRs are either used in an environmentally safe manner, or disposed of in landfills 

that comply with appropriate location, design, construction, and operating requirements. The 

United States Congress, however, did not grant to EPA similar regulatory authority over CCRs in 

RCRA. Accordingly, EPA’s current proposal attempts to fit the “square peg” of CCRs into the 

“round holes” of either Subtitle D or Subtitle C of RCRA. Neither option provides a good fit.

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06275-27

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

LBWL and MSU believe that, instead of EPA’s current effort to force CCR regulations into an 

ill-fitting statutory structure, EPA should allow Congress to address this issue and, if appropriate, 

amend RCRA to provide EPA with the express authority to achieve its regulatory objectives. 

LBWL and MSU concur with the following statement from the Congressional Research Service 

contained in its September 21, 2010 report (attached as Exhibit H) concerning Congress’s 

legislative options concerning CCR regulations: [Footnote 36: Congressional Research Service, 

Regulating Coal Combustion Residuals: Issues for Congress] 

Members of Congress have several legislative options to address concerns expressed by [EPA, 

environmental groups, and industry]. Congress may choose to direct EPA to leave the Bevill 

exemption in place and continue to exempt the material from regulation as hazardous waste. This 

may be problematic in that the original amendment directed EPA to hold the exemption pending 

a report to Congress on various factors regarding the waste’s volume, disposal, and actual harm 

and potential risks associated with its disposal. For the past 30 years, EPA has been gathering 

that information and has determined that improper management poses significant risks to human 

health and the environment and that those risks could be minimized through some form of 

national regulation. Instead of (or in addition to) prohibiting EPA from regulating the waste 

under Subtitle C, Congress could choose to give EPA additional authority to regulate it under 

Subtitle D. It may specifically direct EPA to establish waste management criteria under Subtitle 

D applicable to solid waste management facilities that receive CCW. Such provisions could 

potentially draw from the existing distinction between an “open dump” and a “sanitary landfill” 
82

(a facility from which there is no reasonable probability of adverse effects on health or the 

environment from disposal of solid waste). Similar to the HSWA amendments that authorized 

EPA to establish criteria applicable to MSW landfills, Congress could specifically authorize EPA 

to revise existing solid waste management criteria to include standards applicable to landfills and 

surface impoundments that accept coal combustion wastes. Further, Congress could require 

states to adopt a permit program to assure that coal combustion waste management facilities 

within the state meet EPA’s management criteria.

Congress could also choose to create a new subtitle under RCRA (a Subtitle K) that would 

specifically address issues unique to the management of CCW. Such a proposal could include a 

number of legislative provisions, but, broadly, could direct EPA to develop waste management 

standards applicable to disposal units that accept CCW (similar to Subtitle D), but also provide 

EPA with federal enforcement authority to require states to implement those standards (similar to 

Subtitle C) while avoiding labeling the material a “hazardous” waste. Such a proposal could also 

authorize EPA to specifically regulate certain beneficial uses (such as construction fill).

Congress may also choose to do nothing. That is, Congress may allow the current rulemaking 

process to continue and allow EPA to select either its Subtitle C- or D-related proposal.

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06275-43

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

Neither Subtitle C nor Subtitle D of RCRA provides the proper framework for appropriate 

federal regulation of CCRs and EPA should defer the promulgation of such regulations until 

Congress can review this issue and, if necessary, amend RCRA to expressly authorize EPA’s 

regulation of CCRs.

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

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

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.
83

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06300-4

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

b. EPA Understates Its Subtitle D Authority. 

EPA also offers a selective reading of its own authority under Subtitle D. Perhaps EPA hopes to 

increase support for a Subtitle C program by creating a sense that even under a Subtitle D or D 

Prime program, EPA would be utterly powerless or without a regulatory or enforcement role. 

That, of course, is false. Southern Company does not concede that a Subtitle D program is 

necessary to ensure safety and environmental protection at Southern Company facilities. 

Nevertheless, as explained below, Southern Company disagrees with EPA’s characterization of 

its authority under Subtitle D. 

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

D. 

EPA does not provide a clear explanation of its process for reviewing and approving Subtitle D 

facilities pursuant to Part 256 of its regulations. EPA even states, “EPA has no role in the 

planning and direct implementation of solid waste programs under RCRA subtitle D.” [Footnote 

27: 75 Fed. Reg. 35128, 35136 (June 21, 2010) (emphasis added). ] That statement is incorrect, 

and the preamble significantly understates EPA’s role under Subtitle D. 

Sections 4002 and 4003 of Subtitle D provide federal authority to develop guidelines for state 

plans and impose minimum requirements for EPA to approve those plans. According to EPA’s 

regulations, to receive EPA’s approval, a state must submit a plan to EPA, and the state’s 

proposed plan—

must identify the respective “responsibilities of State, local, and regional authorities in the 

implementation of the State plan”; [Footnote 28: 40 C.F.R. 256.01(b)(1).]

must “contain requirements that all solid waste . . . shall be (i) utilized for resource recovery or 

(ii) disposed of in sanitary landfills . . . or otherwise disposed of in an environmentally sound 

manner”; [Footnote 29: 256.01(b)(2).] 
84

must require the closing of open dumps, i.e., a facility that does not meet Subtitle D standards, 

and “provide for the establishment of such State regulatory powers as may be necessary to 

implement the plan”; [Footnote 30: 256.01(b)(3), (4).] and 

must “provide for resource conservation or recovery and for the disposal of solid waste in 

sanitary landfills or for any combination of practices so as may be necessary to use or dispose of 

such waste in a manner that is environmentally sound.” [Footnote 31: 256.01(b)(6).] EPA’s 

regulations also establish the scope of a state solid waste management plan and a schedule for 

EPA review. [Footnote 32: 256.02, .03.] EPA may disapprove a plan if EPA finds it does not 

meet the above-noted requirements and for certain other reasons. [Footnote 33: 256.04.] States 

must demonstrate that they have adequate authority to enforce solid waste standards; they must 

provide for detection of adverse effects from solid waste facilities; they must use a permitting 

process that “ensures that the establishment of new open dumps is prohibited”; and they must 

provide “administrative and judicial enforcement capabilities . . . as necessary to ensure 

compliance.”[Footnote 34: 256.21.] The regulations continue with a mixture of requirements and 

recommendations with respect to closing open dumps, addressing inactive facilities, resource 

conservation and recovery programs, facility planning and implementation, public participation, 

and other issues. [Footnote 35: See generally 40 C.F.R. Part 256, Subparts C, D, E, F, and G. ] 

Further, as EPA has acknowledged, [Footnote 36: 75 Fed. Reg. at 35211.] the authority provided 

under RCRA Section 7003 to take action in the event of “an imminent and substantial 

endangerment to health or the environment” does not depend on a Subtitle C program. [Footnote 

37: 42 U.S.C. 6973(a).] 

Thus, EPA’s statement that “EPA has no role in the planning and direct implementation of solid 

waste programs under RCRA subtitle D” is misleading and incorrect. EPA’s half-hearted 

characterization of its own role and authority under Subtitle D significantly understates the tools 

EPA may apply when approving a statedeveloped Subtitle D plan. 

To the extent states submit plans, EPA—contrary to its assertions in the preamble—has a direct 

role in evaluating the adequacy of those plans. In light of EPA’s statutory and regulatory 

authority, EPA makes unsupported assumptions about whether states would prepare and submit 

CCB management plans for EPA approval under federal CCB standards issued under Subtitle D 

without providing additional analysis. That analysis should take into consideration the states’ 

responses to other examples of Subtitle D regulations and guidance in the past as well as the 

likelihood of even greater state participation with respect to CCBs in light of the states’ 

traditional role in regulating the delivery of electricity and other public utilities. [Footnote 38: As 

noted above, see Part II.A.2.a supra, EPA may not logically draw inferences with respect to the 

states’ likely response to federal CCB standards and guidance from the status of state programs 

today, when EPA standards and guidance are not in effect.] EPA may also use the incentives 

provided in Subtitle D, such as technical and financial assistance, to encourage state 

participation. Absent a rigorous analysis along those lines, it is arbitrary and capricious for EPA 

to issue Subtitle C standards based on an unsupported assumption that states would not submit 

Subtitle D plans for approval. Further, even if EPA finds that state participation may be anything 

other than universal, EPA must explain why it would refuse to provide an opportunity to submit 

a CCB plan for those states that wish to do so. 
85

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

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

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

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

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

ii. EPA’s Assumption that the Regulated Community Would Violate the Law Is Unsupported 

and Unfounded. 

EPA has also observed that “even in the absence of a state program, CCR landfills and CCR 

surface impoundments would be required to meet the proposed federal minimum criteria as set 

out in 40 C.F.R. part 257, subpart D.” [Footnote 39: 75 Fed. Reg. 35128, 35211 (June 21, 2010) 

(emphasis added).] EPA has not explained why it may assume significant noncompliance with 

federal standards that would be, according to EPA, mandatory. 

Southern Company makes it a top priority to keep its facilities safe and in compliance with all 

applicable laws and regulations. Southern Company takes strong exception to the notion that we 

or other utilities would fail to comply with standards that become effective pursuant to Subtitle 

D. In any event, to the extent EPA makes such assumptions, EPA has failed to explain them or 

provide support in the administrative record.

Response: The Agency has revised its compliance estimate to state that all CCR units would be 

in compliance with the rule. The commenter is also referred to Unit XII and the supporting 

document for this section that addresses the cost benefit analysis.

Comment Number: EPA-HQ-RCRA-2009-0640-06352-13

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

One of the concerns USEPA has expressed with implementing a subtitle D option for regulating 

CCRs is the lack of federal oversight authority. Under RCRA subtitle C, authority for 

administering the regulations is granted to states while USEPA retains the capability to step in 

and take over the program from the state should circumstances warrant it. In its comments, 

USWAG presents a strong basis as to why the agency does in fact, have the authority to assert 

jurisdiction over CCRs under subtitle D in combination with delegating authority to the states. 

Without reiterating the legal foundation for USWAG's position here, DP&L simply believes that 

the perceived lack of federal regulatory oversight capability is no basis upon which to impose a 

subtitle C regulatory scheme on CCRs requiring drastic modifications to the way CCRs are 
86

managed, causing significant disruption to their beneficial use, resulting in major capital and 

operating expenditures by utilities for marginal environmental improvement

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06357-4

Organization1:Kansas City Power & Light Company

Commenter1: Paul M. Ling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Rulemaking Record Supports the Subtitle D Option

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

regulations for CCRs is fully consistent with the rulemaking record. The development of Subtitle 

D regulations would be the appropriate outgrowth of EPA’s two Reports to Congress and two 

Regulatory Determinations under the Bevill Amendment declaring that CCRs do not warrant 

hazardous waste regulation under RCRA Subtitle C, but rather should remain primarily the 

province of state regulatory programs under RCRA Subtitle D.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-16

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The RCRA Subtitle D framework provides the appropriate legal structure under which EPA may 

develop federal regulations for CCR.

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

referred to Unit IV and Unit V of today’s preamble for a discussion on our decision to regulate 

CCR under subtitle D of RCRA. 
87

Comment Number: EPA-HQ-RCRA-2009-0640-06398-20

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

As indicated by the written comments on the Proposed Rule submitted to EPA by states such as 

Indiana and Kentucky, EPA is encouraged, to the extent it deems necessary, to request from 

Congress the statutory authority necessary to propose non-hazardous regulations under Subtitle 

D that are implemented by the states and provide federal enforceability. If such a mechanism is 

not utilized by EPA for states to be able to implement these rules, the electric utility industry and 

CCR beneficial users will be faced with having to comply with duplicative and potentially 

inconsistent state and federal regulations, an undue regulatory burden with no corresponding 

environmental benefit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-22

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

Duke Energy concurs with USWAG’s legal analysis that EPA already has the authority to 

promulgate rules under RCRA §§ 4005(c) and 4010(c) that may be administered through state 

permitting programs and be subject to direct federal enforcement in states that fail to adopt and 

adequately administer the federal rules. Specifically, EPA can utilize a combination of the 

RCRA statutory authorities it employed in promulgating federally enforceable Subtitle D rules 

for municipal solid waste land disposal facilities (“MSWLFs”) and non-MSWLFs under 40 

C.F.R. §§ 257 and 258 to establish controls for CCR disposal units.

This approach provides EPA with the enforcement authority it desires under a Subtitle D CCR 

regulatory program, while also giving the states the opportunity to take a prominent role in the 

administration of any Subtitle D CCR program. Again, this would prevent the duplication of 

potentially conflicting federal and state requirements. If, for whatever reason, EPA does not 

agree that the use of RCRA §§ 4005(c) and 4010(c) are legally defensible, it can and should seek 

congressional authorization to develop such a rule for managing CCR under a state authorized 
88

program similar to that developed for MSWLFs under 40 C.F.R. § 258, rather than promulgate a 

CCR rule that does not provide for state implementation.

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06400-2

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.6 11.3

Comment Excerpt Text:

We are surprised, however, by the false dichotomy posed in EPA’s proposal of two options to 

regulate CCRs when disposed: either as a Resource Conservation and Recovery Act (RCRA) 

Subtitle C regulated hazardous waste or as a RCRA Subtitle D nonhazardous waste subject only 

to citizen suit enforcement, not permitting, at disposal facilities. RCRA does not compel this 

legal interpretation of EPA’s authority. Nor is it wise to view RCRA through this narrow lens, 

because it creates an artificial constraint on EPA’s ability to fulfill its mission under RCRA to do 

what is necessary to protect human health and the environment. By taking the position that 

EPA’s authority under RCRA goes to only two relatively small waste streams, EPA abdicates 

responsibility to assure protection in the handling of the vast majority of wastes generated in the 

U.S.

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06400-3

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Applicability of RCRA Subtitle D authority to CCRs: The association of the public utilities, the 
89

Utility Solid Wastes Activities Group (USWAG), has made a compelling argument that RCRA 

Section 4010 fully authorizes EPA to determine that CCRs, like municipal solid waste, should be 

subject to uniform national criteria establishing a detailed regulatory program states will 

implement through issuance of permits. [Footnote 1: See Jim Roewer, USWAG, “Comments of 

the Utilities Solid Waste Activities Group” (given before U.S. EPA in public meeting in 

Pittsburgh, September 21, 2010).] The legal argument made by USWAG is attached and 

incorporated by reference in our comments. We believe USWAG’s reading of RCRA authority is 

correct and should be employed by EPA to create a final rule implementing a CCR disposal 

program. 

The RCRA Subtitle D framework has been created to afford EPA broad authority to protect 

human health and the environment from impacts from waste handling and disposal. EPA has 

overall authority under RCRA Sections 4003 and 4004 to require that solid waste be disposed in 

sanitary landfills, not open dumps. Sanitary landfills are not limited to municipal solid waste, but 

are defined simply as landfills that provide "there is no reasonable probability of adverse effects 

on health or the environment from disposal of solid waste at such facility." RCRA 4004(a). EPA 

can create classifications of types of sanitary landfills (Section 4004(a)), and thus could create 

new standards tailored for coal waste or apply the current Part 258 standards (modified, as 

needed, to address the specific characteristics of CCRs).

Under RCRA Section 4010(c), EPA was required to promulgate criteria including groundwater 

monitoring, location standards and corrective action for facilities that "may receive hazardous 

household wastes or hazardous wastes from small quantity generators" (emphasis added). Under 

Section 4005 (c), EPA may use the authorities of sections 3007 and 3008 to enforce the open 

dumping prohibition directly against facilities that "may handle hazardous household waste or 

hazardous wastes from small quantity generators."

Case law and the legislative history of Section 4010 make clear than EPA’s authority is broadly 

construed. In the 1993 case Sierra Club v. EPA, 992 F. 2d 337 (DC Cir. 1993), 

http://bulk.resource.org/courts.gov/c/F2/992/992.F2d.337.92-1005.92-1003.html, the Court 

affirmed EPA’s broad authority:

Section 4010(c) of RCRA requires the Agency, by March 31, 1988, to promulgate revisions to 

the criteria established for Subtitle D facilities "that may receive hazardous household wastes or 

hazardous wastes from small quantity generators." 42 U.S.C. § 6949a(c). This category of 

facilities includes not only municipal solid waste landfills ("MSWLFs"), but also industrial 

landfills, surface impoundments, land application units, waste piles, and construction/demolition 

waste landfills. See 56 Fed.Reg. 50,999 (1991). . . . The Agency does not contend that RCRA § 

4010(c) applies only to MSWLFs. On the contrary, in the preamble to the proposed rule, the 

Agency acknowledged that the "mandated scope includes all MSWLFs, which may receive 

[hazardous household waste] and [small quantity generator] hazardous waste, and some 

industrial solid waste disposal facilities and certain other Subtitle D facilities, which may receive 

[small quantity generator] hazardous waste." 53 Fed.Reg. 33,322 (1988). The Agency stated, 

however, that it had "obtained extensive information on only the characteristics of MSWLFs," 

and that "[n]either EPA nor the States have comparable information on industrial solid waste 

disposal facilities at this time." Id. It therefore decided to undertake the revisions to the RCRA 
90

criteria in "phases," addressing MSWLFs in the present rule and other Subtitle D facilities "at 

such time as EPA has adequate data on which to base its decision." Id.

The Agency acknowledged that its 4010 obligation went beyond MSWLFs: “Far from claiming 

that its actions are complete, the Agency explicitly states its intention to issue revised criteria for 

non-municipal facilities when it has the data necessary to do so.” Indeed, the Circuit Court 

invited the Sierra Club to sue EPA in district court to fulfill its obligation to regulate all of the 

non-municipal facilities for which the Agency has jurisdiction under 4010. Absent regulations 

requiring the kinds of waste screening and facility monitoring set forth in, for example, Part 258 

standards, EPA has no assurance that CCR units might not contain some measure of hazardous 

waste. The Agency thus has authority to promulgate criteria to provide that assurance and to add 

the safeguards required of 4010 facilities: groundwater monitoring, location standards and 

corrective action.

The legislative history of Section 4010 is consistent with the Court’s expansive determination. 

The Conference Report for the 1984 amendments to RCRA (HR 2867 as enrolled and signed, p. 

116) indicates that the Conference was viewing 4010 broadly: "Subtitle D facilities are the 

recipients of unknown quantities of hazardous waste and other dangerous materials resulting 

from the disposal of household waste, small quantity generator wastes and illegal dumping." The 

Senate Report for the bill (S. Rept. 98-248 regarding S. 757, pp. 49-50) goes further: "Substantial 

quantities of material of a hazardous nature finds its way into subtitle D disposal facilities (i.e., 

all those not required to have a permit under subtitle C)." Mentioned are not only small quantity 

generators and household hazardous waste, but additional materials: "Because of the currently 

inadequate procedures for identifying, listing, and delisting hazardous wastes, many troublesome 

materials currently unregulated under subtitle C will go to subtitle D facilities. These include 

infectious wastes and wastes delisted through marginal neutralization of their corrosivity 

characteristic." 

Congress’s initial focus on municipal waste landfills reflected a sense of priority but not 

exclusion: "The impetus for requiring these revisions is primarily the concern for potential 

disposal of hazardous materials with nonhazardous wastes. Therefore, in revising the criteria the 

Agency should focus initially on municipal landfills and subtitle D surface impoundments where 

this is most likely to occur." (S. Rept. 98, p. 49, emphasis added). Note as well that even the 

initial focus includes both municipal landfills (which EPA addressed in Part 258) and Subtitle D 

surface impoundments, which may well extend beyond municipal impoundments to include 

other industrial impoundments that EPA is only now beginning to address.

As the Senate report indicated (p. 50), Subtitle D “provides the Act’s only regulatory framework 

for the environmentally sound disposal of solid waste at landfills and impoundments not subject 

to subtitle C permits. The purpose of these amendments is to strengthen State and Federal 

oversight of subtitle D facilities, particularly those which might receive hazardous wastes from 

small quantity generators or in household wastes. These subtitle D improvements require action 

at both the Federal and the State level.” (emphasis added). 

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
91

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

Comment Number: EPA-HQ-RCRA-2009-0640-06400-4

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.6 7.3.3 7.4.2

Comment Excerpt Text:

Long-term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale 

for considering RCRA Subtitle C regulation of CCRs derives wholly from its self-imposed 

limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and 

municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the technical unit design 

and groundwater monitoring requirements that will effectively protect human health and the 

environment under either option are quite similar.” CCR Proposal at 35159.]. This constrained 

reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s 

mandate to protect human health and the environment. Under the rational of this rule, of the 7.6 

billion tons of solid waste EPA estimates to be in existence [Footnote 3: See 

http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over 

only 46 million tons of hazardous waste (6.9 million tons of non-wastewater) (CCR Proposal at 

35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for 

which RCRA could provide protection.

This limitation is very shortsighted, and undervalues the important protections EPA and the 

states have afforded communities under RCRA authority. Our experience under the RCRA 

Subtitle C and D programs has been comparable; under both programs, we see state regulators 

bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW 

landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the 

environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory 

program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_-

_Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA 

has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C 

regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with 

programs implementing the high siting, technical and operational standards EPA intended. The 

states assure those standards remain in force for the life of a facility’s permit, including the 

necessary post-closure monitoring period. Through the approval process and as states revise their 

programs over the years, EPA Headquarters and, in particular, the Regions provide scrutiny, 

technical assistance and oversight.

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
92

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06416-29

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 2.1.6

Comment Excerpt Text:

In section I.D., p. 35136, Regulation of solid wastes under RCRA Subtitle D, the legal analysis 

claims that EPA does not have authority to establish nationwide standards for non-municipal 

solid wastes. It can be noted that States have generally adopted, as a minimum, the part 258 rules 

and incorporated them into their previously established programs. If EPA feels that it lacks 

authority to implement such an approach, there are a couple of tactics that could be used. One is 

to seek congressional authority for the approach. The other is to draft a rule similar to s. 40 CFR 

761.77, TSCA coordinated approval, as a stopgap until EPA seeks and obtains federal authority 

to authorize State programs to regulate CCR waste disposal. 

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06541-2

Organization1:Large Public Power Council (LPPC)

Commenter1: Brian H. Moeck, LPPC Environmental Task Force

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

• EPA’s concerns about the Subtitle D approach are unfounded Subtitle D of RCRA reflects the 

Congressional judgment that States play an important role in overseeing solid waste management 

activities and ensuring that human health and the environment are adequately protected. 

Congress thus crafted a statutory scheme that EPA has succinctly and accurately summarized as 
93

follows:

Subtitle D of RCRA establishes a framework for Federal, State, and local government 

cooperation in controlling the management of nonhazardous solid waste. The federal role in this 

arrangement is to establish the overall regulatory direction, by providing minimum nationwide 

standards for protecting human health and the environment, and to provid[e] technical assistance

to states for planning and developing their own environmentally sound waste management 

practices. The actual planning and direct implementation of solid waste programs under RCRA 

Subtitle D, however, remains a state and local function, and the act authorizes States to devise 

programs to deal with State-specific conditions and needs. Id. at 35136.

EPA states that in addition to assessing “the extent of the risks posed by the current 

management” of CCRs, id. at 35156, “[a]n equally significant component of the overall picture, 

if not more so, relates to how effectively state regulatory programs address the risks associated 

with improper management of this material.” Id. at 35157 (emphasis added). EPA further 

indicates that because it “continues to lack substantial details regarding the full extent of state 

regulatory authority over these materials, and the manner in which states have in practice, 

implemented this oversight. . .the Agency is reticent to establish a regulatory program without 

any federal oversight.” Id.

EPA’s concern regarding the quality and administration of State programs is understandable, but 

Congress has already made the clear policy decision that the States are important partners under 

Subtitle D, and that they should have the primary oversight and enforcement responsibility for 

ensuring the safety and health of their own citizenry. If EPA is concerned about that allocation of 

responsibilities, or with the adequacy of the States’ efforts in protecting human health or the 

environment, it should address those concerns with Congress, rather than arrogating the States’ 

assigned statutory role.

LPPC also believes that EPA’s concerns about the adequacy of existing State programs are 

unfounded, as they are based on incomplete and, more important, backward-looking information. 

EPA essentially concludes that “even though overall industry practices appear to be improving,” 

id., the fact that there have been incidents of “proven damages” to groundwater and surface 

water under existing State programs must mean that those programs are necessarily inadequate. 

EPA states that it will therefore continue “to evaluate the overall adequacy of state regulatory 

programs” by considering “how state regulatory programs have, in practice, evaluated and 

imposed requirements to address” a list of eleven factors enumerated in the preamble. Id.

But that inquiry fails to take into account the critical fact that those programs were developed 

and implemented by the States in the absence of national criteria under Subtitle D. Indeed, the 

whole purpose of the Subtitle D co-proposal would be to establish minimum technical standards 

that would be prospectively adopted by the States and incorporated into new or existing 

regulatory programs. EPA itself makes this very point, but fails to appreciate its significance:

EPA recognizes that many of the states have regulatory programs in place, albeit with varying 

requirements, for the disposal of CCRs, and that industry practices have been improving. The 

RCRA subtitle D approach would complement existing state programs and practices by filling in 
94

gaps, and set forth criteria for disposing of CCRs to meet the national minimum standards that 

are designed to address key risks identified in damage cases and the risk assessment – including

the risk of surface impoundment failure, which has been identified as a concern appropriate for 

control. Id. at 35159 (emphasis added).

LPPC respectfully submits that EPA’s assessment of the Subtitle D co-proposal should be 

forward-looking, and should be based on the assumption that States will faithfully execute their 

responsibilities under the cooperative statutory framework established by Congress. EPA should 

assume that States will adopt, implement, and enforce in a timely manner the performance 

standards of any national criteria that are issued by EPA under Subtitle D, and should allow the 

States sufficient time to carry out those responsibilities. If EPA were later to determine that the 

States’ implementation efforts were inadequate, EPA could at that time reevaluate whether 

regulation of CCRs under Subtitle C would be necessary to protect human health and the 

environment

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06864-2

Organization1:Hull & Associates, Inc.

Commenter1: William G. Petruzzi

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.2

Comment Excerpt Text:

If the US EPA does choose to proceed with the initiative to regulate CCR as a solid waste, then 

CCR should be designated as a special class within the SubTitle D regulations (i.e. such as a 

residual waste). As proposed, the current SubTitle D option has an underlying flaw that needs to 

be addressed by the legislature before anything can move forward – currently there is no 

authority for the US EPA to enforce the program or to give the State the authority to enforce the 

rule under SubTitle D. Legislation will need to be passed by Congress to amend RCRA so that 

the material can be managed as a non-hazardous solid waste under the State’s authority. 

Additionally, our recommendation would be that any Federal initiative establishes only general 

goals and objectives for the rule, but they should not contain specific design and compliance 

criteria that will be better addressed at the State level. The obvious reason for this is that a one 

size fits all approach is probably not workable – the rules need to fit within each State’s own 

environmental protection programs. Taking into account and CCR characteristics, 

geological/hydrogeological conditions and/or other variables that need to be considered. This 

will allow States to control programs under their enforcement authority, and to provide for the 

flexibility for each State to consider developing programs that address the following guidelines: 
95

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

2. Take a science-based approach. 

3. Apply equivalent standards for equivalent threats. 

4. Following a risk-based approach. 

5. Establishing a performance based approach. 

6. Do not over or under regulate. 

7. Consider retrofitting existing sites to meet performance standards rather than mandating the 

closure of existing sites and replacement with new sites. 

8. Allow options for assessing sites and demonstrating equivalencies rather than meeting specific 

technical specifications. 

9. Focus on cost benefits. 

10. Appreciate timing requirements for siting, design, permitting, and constructing new (or 

upgraded) units/facilities. 

11. Explore additional beneficial use opportunities. 

12. Consider resource conservation. 

13. Allow for technical demonstrations to support requests for variances and/or exclusions to 

allow for new technologies and products to be applied as technologies evolve and get introduced 

to the market. 

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06867-9

Organization1:Manufacture Alabama

Commenter1: Blake Hardwich on behalf of Mike Conlon

Commenter Type: Trade Association

Classification: Substantive
96

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.7.7

Comment Excerpt Text:

The reason some states have not implemented CCB programs to EPA's liking before now is not, 

as EPA suggests, because of some lack of competence or ability on the part of the states. Most 

states have robust Subtitle C and D programs in place today, and those programs include 

essentially the same components that would be implemented under a CCB disposal program. 

Rather, the states have not been required or even encouraged to regulate CCBs because of EPA's 

own failure to issue federal standards under Subtitle D, despite Congress having provided EPA 

the explicit authority to do so some thirty years ago through the Bevill amendment, and despite 

EPA's own determinations in 1993 and 2000 that Subtitle D regulation was warranted. To the 

extent EPA regards the current condition of state CCB regulation as a problem, EPA has only 

itself to blame. For EPA to use that situation as a basis to simultaneously criticize state agencies 

and seek greater power for itself is an insult to the states and to principles of federalism.

Response: The Agency acknowledges the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-18

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle C Regulation is Unnecessary Since EPA Has Enforcement Authority Under 

Subtitle D

One of EPA’s stated concerns with the Subtitle D option is that it would not allow EPA to 

require the states to implement the Subtitle D CCR controls through state permits, approve the 

adequacy of the state programs, or enforce the regulations against non-compliant facilities. This 

concern is mistaken. EPA is underutilizing the full scope of its authority under Subtitle D by 

looking solely to RCRA Section 4004 for purposes of developing Subtitle D controls for CCRs. 

EPA can utilize the same combination of RCRA statutory authorities – i.e., RCRA Sections 

4010(c) and 4005(c) – for establishing controls for CCR disposal units that it employed in 

promulgating federally enforceable Subtitle D rules for municipal solid waste landfills 

(“MSWLFs”) and for non-MSWLFs that receive household hazardous waste and conditionally 

exempt small quantity generator waste under 40 C.F.R. Parts 257 and 258.

The combination of these two Subtitle D provisions enables EPA to promulgate nonhazardous 

waste rules for CCRs that can be directly administered through state permitting programs and 

backed up by direct EPA enforcement powers in those states that fail to adequately implement
97

the federal rules. Such an approach offers a win-win for EPA: it provides the Agency with the 

enforcement authority it desires under a Subtitle D CCR regulatory program while enabling the 

states to have a prominent role in the administration of any Subtitle D CCR rules, thereby 

preventing the duplication of federal and state controls in keeping with the intent of the Bevill 

Amendment.

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-07001-3

Organization1:Vectren Corporation

Commenter1: Angila M. Reinerford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Vectren believes that the promulgation of a regulatory program under RCRA Subtitle D is 

entirely appropriate and extensively supported in the record given EPA's two previous Reports to 

Congress and final Regulatory Determinations [Footnote 3: 58 Fed Reg. 42466 (Aug. 9,1993); 

65 Fed. Reg. 32214 (May 22,2000).] declaring that CCRs do not warrant a hazardous waste 

designation under RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07680-2

Organization1:Honigman Miller Schwartz and Cohn LLP on behalf of Lansing Board of 

Water and Light (LBWL) and Michigan State University (MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level, 

and EPA should defer any action on the proposal unless and until Congress amends RCRA to 

provide specific authority for EPA to regulate CCR disposal.
98

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08850-2

Organization1:Lansing Board of Water & Light (BWL)

Commenter1: Lansing Board of Water & Light (BWL)

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

RCRA's existing statutory structure is not appropriate for regulating CCRs at the federal level 

and EPA should defer any action unless and until Congress amends RCRA to provide specific 

authority for EPA to regulate CCR disposal. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-3

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

While PSGC has significant concerns with the Subtitle D option, as discussed below, there is no 

question that RCRA's Subtitle D framework provides the appropriate legal structure under which 

EPA may develop federal regulations for CCRs. Under the proposed Subtitle D option, EPA 

would not reverse its final 2000 Regulatory Determination for CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-82

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:
99

PSGC recommends that EPA request specific legislative authorization to develop federally 

enforceable Subtitle D regulations. If EPA declines this approach, PSGC supports the 

development of Subtitle D non-hazardous waste regulations for CCRs under the proposed 

Subtitle D Prime option with the modifications discussed above. After addressing PSGC's 

comments, PSGC requests that EPA re-propose the Subtitle D Prime option and allow the public 

to comment on the final proposal.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09281-2

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. Subtitle D authorizes imposition of the substantive controls commonly accepted for providing 

environmental protection relating to disposal of CCR in landfills and surface impoundments. 

Under Subtitle D, EPA has proposed and can impose substantive controls that can successfully 

prevent damage to the environment from CCR disposal in landfills and surface impoundments. 

Substantive controls include location standards, design standards, groundwater monitoring, and 

ultimately liners and leachate collection systems. Upgrades such as liners for existing units, 

primarily surface impoundments, address the most significant environmental problems, which 

are frequently associated with older units not designed to newer state-of-the-art standards.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09530-11

Organization1:PSEG Power LLC and Public Service Electric and Gas

Commenter1:Eric B. Svenson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

XII. EPA Should Develop Subtitle D Rules With Direct EPA Enforcement Authority 

EPA has expressed concern that the Subtitle D option does not allow EPA to require the states to 

implement the Subtitle D CCR controls through state permitting programs, approve the adequacy 
100

of the state programs, or enforce the regulati ons against noncompliant facilities [75 Fed. Reg. at 

35194]. EPA has made this determination based on its authority under RCRA section 4004 for 

purposes of developing Subtitle D controls for CCRs [75 Fed. Reg. at 35193-35194].

PSEG believes Sections 4010(c) and 4005(c) of RCRA could provide the basis for EPA to 

promulgate a Subtitle D option for CCR’s permitted by states, but enforced at a federal level. 

This approach would provide the Agency with enforcemen t authority under a Subtitle D 

program, while maintaining a state permitting program, thereby preventing the duplication of 

federal and state controls that Bevill Amend ment directs EPA to avoid. 

In this regard EPA could evaluate existing state controls to validate their ability to adequately 

permit CCR disposal units (as is the case with municipal solid waste landfills under 40 C.F.R. 

Part 258) and administer controls, where federal oversight can apply to ensure compliance with 

the applicable regulatory requirements. Such an approach would allow for the necessary state 

involvement in administrating Subtitle D and ensure appropriate regulatory controls available via 

federal oversight. 

While PSEG believes EPA has the authority to enforce Subtitle D regulations, if EPA believes 

that it does not have the appropriate authority, then EPA could consider a legislative solution and 

ask for enforcement authority under Subtitle D through a statutory adjustment. At a minimum, 

PSEG encourages the Agency to pursue this legislative path to obtain the necessary authority to 

enforce under Subtitle D if EPA believes this is the only impediment to a Subtitle D program for 

CCR’s.

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-09633-9

Organization1:Waterkeeper Alliance

Commenter1:Scott Edwards

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. Subtitle D Is Not Intended To Regulate Hazardous Waste Such As Coal Ash 

Subtitle D of RCRA was created by Congress to regulate municipal solid waste, or garbage, as 

well as certain non-hazardous industrial wastes. The only hazardous wastes regulated under 

Subtitle D are household hazardous waste and hazardous waste from conditionally exempt small 

quantity generators (generating 100 kilograms or less per month of hazardous waste) [Footnote 

40: EPA Region 10: the Pacific Northwest, Managing Non-Hazardous Municipal and Solid 

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

these exceptions were clearly made due to the relatively low volume of hazardous waste 
101

produced. In comparison, approximately 130 million tons of coal ash is generated by power 

companies each year, with almost 60 percent (or 70 million tons) of that destined for disposal in 

landfills or surface impoundments. [Footnote 41: Coal Ash: The Hidden Story, by Kristen 

Lombardi, Center for Public Integrity report, February 19, 2009, available at: 

http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r

elated_heds&utm_campaign=related_bottom] EPA cannot reasonably conclude that the massive 

amounts of coal ash being produced each year should be analogized to household and small 

generator waste for the purposes of regulating this hazardous waste under Subtitle D. 

Moreover, examination of the non-hazardous industrial wastes regulated under Subtitle D shows 

that coal ash does not belong here either. This category includes construction and demolition 

materials (e.g. concrete, wood, bricks, glass, and plastics) and medical waste (e.g. discarded 

surgical gloves and instruments, culture dishes and swabs, and removed body organs). [Footnote 

42: EPA website, Industrial Waste, available at: 

http://www.epa.gov/epawaste/nonhaz/industrial/index.htm] Although so-called “special wastes,” 

which currently include coal ash, are also contained within this class of non-hazardous industrial 

waste, the data establishing that coal ash is indeed hazardous shows that it no longer belongs 

there. “Special wastes” were placed in a separate category by Congress and by EPA because “at 

the time, [they] were believed to possess less risk to human health and the environment than the 

wastes being identified for regulation as hazardous waste.” [Footnote 43: Id] Therefore, 

hazardous waste requirements for “special wastes” were deferred “...until further study and 

assessment could be completed to determine their risk to human health and the environment.” 

[Footnote 44: Id] Since “further study and assessment” have now determined that coal ash poses 

serious risks to human health and the environment, and exhibits a characteristic (toxicity) of 

hazardous waste, coal ash plainly belongs under Subtitle C.

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-10019-6

Organization1:Spalding & Hilmes, PC

Commenter1: Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et 

al

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

EPA's other proposed approach is inadequate to fill the gaps and relies too heavily on states. 

Subtitle D of RCRA establishes a framework for Federal, State, and local government 

cooperation in controlling the management of nonhazardous solid waste. The federal role is to 

provide minimum nationwide standards for protecting human health and the environment, and to 

providing technical assistance to states for planning and developing their own waste management 

practices. The actual planning and direct implementation of solid waste programs under RCRA 
102

subtitle D remains a state and local function, and the act authorizes States to devise programs to 

deal with State-specific conditions and needs. In contrast to subtitle C, RCRA subtitle D 

requirements relate only to the disposal of the solid waste, and EPA does not have the authority 

to establish requirements governing the generation, transportation, storage, or treatment of such 

wastes prior to disposal. Moreover, EPA would not have administrative enforcement authority to 

enforce any RCRA subtitle D criteria for CCR facilities, authority to require states to issue 

permits for them or oversee those permits, nor authority for EPA to determine whether any state 

permitting program for CCR facilities is adequate. Subtitle D of RCRA also provides less 

extensive authority to establish requirements relating to the cleanup (or corrective action) and 

financial assurance at solid waste facilities. Under subtitle D, EPA would establish national 

criteria for location standards, composite liner requirements (new landfills and surface 

impoundments would require composite liners; existing surface impoundments without liners 

would have to retrofit within five years, or cease receiving CCRs and close); groundwater 

monitoring and corrective action standards for releases from the unit; closure and post-closure 

care requirements; and requirements to address the stability of surface impoundments. States or 

citizens could enforce the requirements under RCRA citizen suit authority; the states could also 

enforce any state regulation under their independent state enforcement authority

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

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

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

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

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

Comment Number: TRANS-DEN-0039-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5

Comment Excerpt Text:

One of EPA's stated concerns with the Subtitle D option is its perceived lack of federal 

enforceability under this approach. However, EPA does have the authority to issue federally 

enforceable Subtitle D rules for CCRs; it simply is not using that authority. 

I refer EPA to the same RCRA provisions under which it issued federally enforceable Subtitle D 

rules for municipal solid waste landfills. The first provision, Section 4010(c), directs EPA to 

develop Subtitle standards for facilities that may or may potentially receive household or 

conditionally exempt small quantity generator waste. 

A related provision, Section 4005(c), authorizes EPA to enforce these Subtitle D regulations in 

states that fail to adopt and implement the federal rules. 

CCR disposal facilities fall within the scope of EPA's authority under these provisions, and 

without any question may or have the potential to receive these wastes. 
103

The development of Subtitle D regulations under 4010 of RCRA offers a win-win for EPA and 

the public. While this approach would likely require supplemental proposals, it will assure that 

the agency gets it right, providing the agency with the enforcement authority it desires while 

avoiding the unnecessary and adverse implications of Subtitle C. 

There is simply no reason for EPA to pursue the Subtitle C approach when it can develop 

federally enforceable rules under the less controversial, yet equally protective, Subtitle D 

nonhazardous waste program

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

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

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

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

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

Section 2.1.3 - 2000 Regulatory Determination (35136-35137)

Total Number of Submissions: 70

Total Number of Comments: 98

Comment Number: EPA-HQ-RCRA-2009-0640-02196-4

Organization1:

Commenter1:Nick Mankle

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

I agree with the EPA’s final 2000 Regulatory Determination that regulating CCRs under 

RCRA’s hazardous waste program is unwarranted, an I urge EPA to reject any option that would 

regulate CCRs in this manner.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-04001-11

Organization1:Coresco, LLC

Commenter1: Carrie D. Lilly

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

5. The Rule and the 2000 Regulatory Determination fail to provide sufficient analysis about 

distinctions among the regulation of FFCs established in the 1993 Regulatory Determination
104

The Rule recognizes that the Consent Decree entered into by EPA on June 30, 1992 created two 

categories of fossil fuel combustion (FFC) wastes. The Regulatory Determination published by 

EPA on August 8, 1993 concluded that regulation under Subtitle C of the RCRA was not 

warranted for fly ash, bottom ash, boiler slag, and flue gas emission control waste from the 

combustion of coal by electric utilities and independent commercial power production (known as 

the first category FFC wastes), Any type of federal regulation of first category of FFC wastes is 

contrary to the 1993 Regulatory Determination, The analysis set forth in the 2000 Regulatory 

Determination as the basis for federal regulation of all CCRs is insufficient. Further, for the 

reasons stated above in Section 4, even if the EPA has legitimate reasons to conclude that all 

CCRs should be subject to federal regulation, regulation under Subtitle C is not warranted,

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-04041-4

Organization1:Environment Maryland Research & Policy Center

Commenter1: Brad Heavner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

On March 9, 2009, the EPA announced that it would review procedures for the management of 

coal ash. The EPA’s announcement was prompted by the growing concern over the risks to 

public health and the environment posed by coal ash, a concern fueled by the spill of a billion 

gallons of toxic coal ash from a coal ash pond in Tennessee that caused environmental damage 

and continues to pose significant human health risks. Similar public health risks and 

environmental degradation exist for other methods of coal ash disposal such as in landfills, mine 

reclamation or as structural fill for development. Unfortunately, in 2000, EPA had confirmed a 

20-year position that coal ash regulation under Subtitle C of RCRA was not warranted primarily 

because existing solid waste management and siting practices were adequate to address coal ash 

disposal and the impacts of hazardous waste management requirements would be an excessive 

cost on the utility industry. EPA’s analysis was incorrect then and, in light of the known risks of 

exposure to coal ash, continued reliance on this analysis that would result in further delay in the 

enactment of comprehensive, enforceable standards for the management of coal ash would be 

unconscionable.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-04138-3

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott
105

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion 

wastes are high volume and low hazard and do not warrant regulation under Subtitle C. EPA 

regulatory findings published in 1993 and 2000 indicate that these wastes “do not warrant 

regulation under Subtitle C.” However, EPA’s proposed rule is not consistent with those 

previous conclusions and the state does not see a technical basis for EPA’s change of course in 

this proposed rule. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06011-5

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

Commenter1: Tony Clark

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA's May 2000 determination that coal ash is not hazardous was made following several years 

of review and analyses and we believe good science and reasoning went into that decision to list 

CCRs as non-hazardous waste. While some environmental problems may occur if these wastes 

are not properly managed, EPA noted in the May 2000 Bevill determination that the utility 

industry had made significant improvement in its waste management practices, including the use 

of liners and groundwater monitoring at CCR landfills. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06011-6

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

Commenter1: Tony Clark

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
106

Other Sections: 7.1.1

Comment Excerpt Text:

Further reviews were then conducted to determine if national standards need to be set under 

Subtitle D of RCRA for the disposal of non-hazardous solid wastes. There were a series of 

discussions between states, OSM and EPA concerning the next steps that would be taken 

pursuant to the regulatory determination. Staff from our Reclamation Division was included in 

these discussions due to the responsibility we have for regulating coal mining under SMCRA. 

Representatives from the Solid Waste Division of the North Dakota Department of Health were 

also involved in these discussions since they have regulated the disposal of CCRs under special 

waste disposal permits since the mid 1980's. 

EPA conducted site reviews of CCR disposal sites in North Dakota and the Department of 

Health provided data and information to demonstrate that the appropriate environmental 

protections are being used in North Dakota. The majority of the CCRs disposed of by North 

Dakota power plants are placed in special waste disposal sites within mined lands that are also 

permitted by the Health Department's Solid Waste Disposal Division. The CCRs disposed of in 

mined lands are placed in confined areas that are clearly designated for this use. Site 

characterization, including geologic and hydrologic data, as well as CCR characterization must 

be carried out as required by the Department of Health. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06196-16

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

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

uncontrolled manner.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06248-9

Organization1:Lignite Energy Council

Commenter1:John W. Dwyer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:
107

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Bevill Amendment does not Authorize an EPA Reassessment 

The Bevill Amendment required EPA to conduct a study and present findings to Congress 

regarding the following factors: (1) the source and volumes of CCR materials generated per year; 

(2) present disposal and utilization practices; (3) potential danger, if any, to human health and the 

environment from disposal and reuse of such materials; (4) documented cases in which danger to 

human health or the environment from surface runoff or leachate has been proved; (5) 

alternatives to current disposal methods; (6) costs of such alternatives; (7) the impact of those 

alternatives on the use of coal and other natural resources; and (8) the current and potential 

utilization of such materials.11 Within six months of submitting the study to Congress, the Bevill 

Amendment also required EPA to decide whether to regulate materials generated from the 

combustion of coal.12 

While extremely tardy in doing so, the EPA conducted the study and made the required findings 

and report to Congress. The EPA determined that the breadth of the coal combustion residuals 

report was such that it would be difficult to complete the study required under 42 U.S.C. § 

6982(n) in time to meet the October 21,1982, statutory deadline.13 Consequently, EPA decided 

to divide the statutorily-mandated report to Congress into two phases. 

The first phase of the report addressed the four large-volume CCRs generated by coal-fired 

electric utilities (including fly ash, bottom ash, boiler slag, and flue gas desulfurization 

materials). This report was submitted to Congress on March 8, 1988 (1988 Report). 14 It 

concluded that the large-volume coal combustion waste streams generally did not exhibit 

hazardous characteristics under RCRA.15 Accordingly, EPA determined that it did not intend to 

regulate those four large-volume coal combustion waste streams.16 The EPA concluded that 

Subtitle C was inappropriate to address the problems associated with these wastes and that the 

site or region specific State approach was more appropriate for addressing the limited human 

health and environmental risks involved with the disposal of [these four large-volume CCR] 

wastes.17 This initial report also encouraged the utilization of coal combustion wastes to the 

extent that such utilization could be done in an environmentally safe manner.18 

EPA provided the following reasons for this determination under 42 U.S.C. §§ 6921(b)(3)(A) 

and 6921(b)(3)(C): 

“After reviewing industry practices and current State and Federal regulation, EPA reviewed the 

alternative scenario of regulating the four large-volume [CCR] wastes under Subtitle C. First, it 

was recognized that coal combustion wastes rarely exceed the RCRA characteristics for 

hazardous waste, and therefore, that most coal combustion wastes would not be subject to 

Subtitle C controls unless they were listed as hazardous wastes. Furthermore, it was noted that 

even if these wastes were listed as hazardous, and therefore, regulated under Subtitle C, such an 

approach would be inappropriate for these wastes. A Subtitle C system would require coal 

combustion units to obtain a Subtitle C permit (which would unnecessarily duplicate existing 

State requirements) and would establish a series of waste unit design and operating requirements

for these wastes, which would generally be in excess of requirements to protect human health 

and the environment. For example, if such wastes were placed in the Subtitle C universe, all ash 

disposal units would be required to meet specific liner and monitoring requirements. Since 

[CCR] sites vary widely in terms of topographical, geological, climatological, and hydrological 

characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, 
108

soil type) and the wastes' potential to leach into the groundwater and travel to exposure points is 

linked to such factors, it is more appropriate for individual States to have the flexibility necessary 

to tailor specific controls to the site or region specific risks posed by these wastes.”19 

The second phase of the report covered all other combustion wastes generated by utilities and 

non-utilities, including the above CCRs when co-managed with certain low volume wastes. The 

second phase report was presented to Congress in 2000.20 The report included the required 

finding under 42 U.S.C. §§ 6921(b)(3)(A) and 6921(b)(3)(C), and determined once again that 

such CCR wastes are more appropriately regulated under Subtitle D rather than Subtitle C of 

RCRA. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-141

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

p. 35192: A. Overview and General Issues

EPA is co-proposing and is soliciting comment on an approach under which the May 2000 

Regulatory Determination would remain in place, and EPA would issue regulations governing 

the disposal of CCRs under sections 1008(a), 2002,m4004 and 4005(a) of RCRA (i.e., "Subtitle 

D" of RCRA).

Kentucky agrees with this approach.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-3

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion 

residuals are high volume and low hazard and do not warrant regulation under Subtitle C. EPA 

regulatory findings published in 1993 and 2000 indicate that these wastes "do not warrant 
109

regulation under Subtitle C." However, EPA's proposed rule is not consistent with those previous 

conclusions and the state does not see a technical basis for EPA's change of course in this 

proposed rule.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06278-1

Organization1:Foxwood Hills Resort, Kinston Manor and Villas of Foxwood Hills

Commenter1:Bryan A. Hamilton

Commenter Type: Other Company

Classification: Non-substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.5 3.1.2

Comment Excerpt Text:

I want to express my opposition on behalf of the owners of Kinston Manor and Villas of 

Foxwood Hills to EPA's plans to regulate coal ash as hazardous. This issue has been studied by 

the EPA on four previous occasions. The last time was in the year 2000 by the Clinton 

Administration, when it was determined that states could safely govern coal ash under federal 

non-hazardous rules. Such a regulation would drive the price paid for electricity much higher. 

This would be an added burden to me and to all other electric ratepayers at a time when many of 

us are struggling with our personal finances. 

I would urge the EPA to refrain from imposing this hazardous regulation on coal ash. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-50

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Page 35148, Column 1, Overview and Summary:

"In the May 2000 determination, EPA concluded that disposal of CCRs did not warrant 

regulation under RCRA subtitle C as a hazardous waste, but did warrant federal regulation as a 

solid waste under subtitle D of RCRA. However, EPA never issued federal regulations under 

subtitle D of RCRA for CCRs."
110

Before regulating materials under Subtitle C, the department believes that EPA should 

implement regulation of CCR under Subtitle D, using the regulatory improvements proposed 

previously. The May 22, 2000, EPA report has a key element on why comments are today being 

solicited. On pages 32214, 32215, and 32232 of the May 22, 2000 Federal Register, EPA 

announced that it would promulgate additional regulations for CCR landfills and surface 

impoundments under Subtitle D and explain how the rule changes would assist the states in 

better regulating these units. On page 32215, Column 2, of the May 22, 2000 Federal Register 

EPA stated,

"While these wastes remain exempt from subtitle C, we have further decided to establish national 

regulations under subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion 

wastes that are disposed of in landfills or surface impoundments or used to fill surface or 

underground mines."

In the decade since that time EPA has not promulgated CCR regulations under Subtitle D. EPA 

has considered the regulation of CCR three times and failed to promulgate CCR rules Tennessee 

and other states have filled the regulatory void left by EPA.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. In particular, the commenter is referred to the discussion on state 

programs.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-2

Organization1:MidAmerican Energy Holdings Company (MidAmerican)

Commenter1: Cathy S. Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

CCR Does Not Warrant Hazardous Waste Regulation

The EPA has a long history of assessing the environmental risks posed by CCR. Over a period of 

nearly 30 years, the EPA has consistently and unequivocally reported both to the U.S. Congress 

and the general public that CCR does not exhibit hazardous waste characteristics. In 1976, 

Congress enacted RCRA to regulate the disposal of a growing volume of municipal and 

industrial wastes. Members of Congress recognized the public policy implications of this 

legislation on the nation’s energy independence and expressed concern that RCRA would create 

an incentive for electric utilities to switch from domestic coal to foreign oil. To address those 

concerns, Congress amended RCRA in 1980 (hereafter “Bevill Amendment”) to single out CCR 

for special consideration and required the EPA to demonstrate that the regulation of CCR would 

not discourage its beneficial reuse by imposing unnecessary regulatory costs specifically related 

to disposal. The Bevill Amendment excluded CCR from regulation as a hazardous waste under 

RCRA Subtitle C and prescribed a series of statutorily defined environmental and economic 
111

assessments that the EPA was required to undertake prior to regulating CCR.

Over the course of the next two decades the EPA worked to implement the Bevill Amendment 

requirements by conducting the statutorily required environmental and economic assessments of 

CCR. The EPA issued its first reported to Congress in 1998 and, utilizing its own, wellestablished test methodologies, concluded that large volume CCR – fly ash, bottom ash, boiler 

slag, and flue gas desulfurization wastes – did not exhibit hazardous characteristics and should 

not be regulated as a hazardous waste under Subtitle C. The EPA’s subsequent 1993 Regulatory 

Determination reaffirmed the determination that large volume CCR was not a hazardous waste. 

Following the 1993 regulatory determination, the EPA began work on assessing low volume 

CCR. The EPA reported to Congress in 1999 that low volume CCR also did not warrant 

regulation as a hazardous waste under Subtitle C. The EPA final Regulatory Determination in 

2000 confirmed the 1999 assessment. The EPA’s current proposal to regulate CCR as a 

hazardous waste under RCRA Subtitle C would be contrary to and inconsistent with EPA’s own 

findings, test methodologies, the law, and the regulatory construct, based on nearly 30 years of 

assessment and analysis without any additional or scientifically-based evidence that CCR 

exhibits hazardous characteristics. EPA should consider regulation of CCR as hazardous only 

those materials that are hazardous (the exception) rather than regulating all CCR as hazardous 

(the rule).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-35

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 3.1.2

Comment Excerpt Text:

A. Subtitle C Regulation Is Technically Not Applicable to CCBs and Would Be Prohibitively 

Expensive and Counterproductive, Without Commensurate Human Health or Environmental 

Benefits. 

EPA seeks comment on regulation of CCBs destined for disposal in landfills or received in 

surface impoundments as listed “special wastes” under EPA’s Subtitle C proposal. This proposal 

is both technically and legally flawed. 

In accordance with 40 C.F.R. 261.11(a)(3), EPA may list a waste as hazardous if, after 

evaluating ten individual criteria, EPA concludes that “the waste is capable of posing a 

substantial present or potential hazard to human health or the environment when improperly 
112

treated, stored, transported or disposed of, or otherwise managed.” [Footnote 105: 75 Fed. Reg. 

at 35166.] For a number of reasons, EPA has failed to meet this necessary standard. Among 

those reasons are (1) the scope of the proposed listing is overly broad; (2) EPA has not identified 

or evaluated other federal and state regulatory programs applicable to CCBs as required by the 

listing criteria; and (3) EPA’s draft screening analysis involving potential risks for CCB fugitive 

dust emissions is overly conservative. In addition, Southern Company agrees with and adopts 

USWAG’s comments regarding EPA’s improper characterization of CCBs as a “special waste.” 

[Footnote 106: See USWAG Comments, supra note 41, at Part VI.] 

In the Bevill Amendment, Congress directed EPA to make a determination regarding whether 

CCBs warrant regulation under RCRA’s Subtitle C hazardous waste program. [Footnote 107: 42 

U.S.C. 6921(b)(3)(A)(ii); 40 C.F.R. 261.4(b)(4). ] EPA completed the statutorily mandated 

Bevill determination process for CCBs considering earlier Reports to Congress, Regulatory 

Determinations, and input from numerous stakeholders after years of study, and EPA concluded 

in its final Regulatory Determination that CCBs do not warrant regulation under RCRA’s 

Subtitle C hazardous waste regulations. [Footnote 108: See generally 65 Fed. Reg. 32214 (May 

22, 2000). In its first CCB Regulatory Determination in 1993, EPA concluded that, given that 

“the potential for damage from these wastes is most often determined by site- or region-specific 

factors,” the “current State approach to regulation” under Subtitle D of RCRA is most 

appropriate. 58 Fed. Reg. 42466 (Aug. 9, 1993). EPA specifically explained, “[I]t is unlikely that 

Subtitle C would effectively address the problems associated with the four large-volume fossilfuel combustion wastes [CCBs] without imposing unnecessary costs.” Id. at 42477. EPA stated 

again in 1999 that RCRA “Subtitle C is inappropriate to address any problems associated with 

disposal of these wastes and that the continued use of site and region specific approaches by the 

states [under RCRA Subtitle D] is more appropriate for addressing the limited human health and 

environmental risks that may be associated with disposal of these wastes.” EPA, REPORT TO 

CONGRESS: WASTES FROM THE COMBUSTION OF FOSSIL FUELS 3-5 (1999). EPA 

reaffirmed that CCBs do not warrant hazardous waste regulation in its 2000 Regulatory 

Determination, concluding that “the [S]ubtitle D regulations are the most appropriate mechanism 

for ensuring that [CCBs] disposed in landfills and surface impoundments are managed safely.” 

65 Fed. Reg. at 32221.] Instead, EPA determined that regulation of CCBs as non-hazardous 

waste under Subtitle D of RCRA would be fully effective in protecting human health and the 

environment.[Footnote 109: 65 Fed. Reg. at 32221.] EPA’s conclusions were based in substantial 

part on the fact that CCBs do not exhibit the “toxicity” characteristic (or any of the other 

characteristics of Subtitle C waste), based on the TCLP, which EPA uses to determine toxicity 

for purposes of RCRA. [Footnote 110: See 75 Fed. Reg. at 35137-38.] 

Southern Company agrees with EPA’s prior determinations that CCBs do not warrant regulation 

as a hazardous waste under RCRA Subtitle C. The information gathered since EPA’s May 22, 

2000, Regulatory Determination does not warrant any different conclusion today. Regulation of 

CCBs as a hazardous waste under RCRA Subtitle C would create inappropriate and unnecessary 

regulatory compliance burdens, including Subtitle C hazardous waste storage, treatment, 

disposal, corrective action, and unit closure requirements. For example, regulation of CCBs 

under Subtitle C would result in major disposal capacity shortfalls because many CCB 

generation facilities would be unable to comply with the regulations in a timely and 

economically feasible manner. EPA concluded in 1993 that “the potential for damage from these 
113

wastes is most often determined by site- or region-specific factors.” [Footnote 111: 58 Fed. Reg. 

at 42466.] Therefore, imposing Subtitle C regulations would eliminate states’ flexibility to take 

the most effective siteand region-specific approaches to CCB management by imposing uniform 

and often inappropriate federal hazardous waste standards on this non-hazardous material. 

Moreover, implementing the Subtitle C proposal would be prohibitively expensive. By EPA’s 

own estimate, Subtitle C compliance costs for utilities would be at least three times higher than 

the “identical” controls under the Subtitle D proposal (average annual cost of $1.47 billion for 

the entire industry under the Subtitle C proposal versus $587 million under the Subtitle D 

proposal for the next 50 years). [Footnote 112: 75 Fed. Reg. 35128, 35213 (June 21, 2010).] EPA 

concedes that its estimate of Subtitle C costs does not include the costs for complying with 

certain significant components of the Subtitle C regulations, including the costs of facilities 

having to retrofit or upgrade CCB management units to meet the Subtitle C storage design 

operating standards. [Footnote 113: Id. at 35212.] Southern Company believes EPA’s estimate is 

grossly understated. By comparison, Southern Company’s pre-screening costs of the proposed 

Subtitle C requirements are between $12.5 and $22 billion for the entire Southern Company 

system alone. 

In addition to agreeing with EPA’s prior determinations, Southern Company agrees with 

USWAG comments explaining that EPA cannot legally reverse its previous determinations that 

CCBs do not warrant regulation under Subtitle C.[Footnote 114: USWAG Comments, supra note 

41, at Part III. ]Specifically, Congress established a detailed process by which EPA could 

determine whether and how to regulate CCBs under RCRA Subtitle C. EPA has completed that 

statutory decision-making process—determining in its 2000 final CCB Regulatory 

Determination that CCBs do not warrant Subtitle C regulation—and RCRA does not authorize 

EPA to now reverse that final Regulatory Determination. It is a fundamental principle of 

administrative law that an agency’s authority to act must come directly from Congress and that 

absent that authority, an agency may not act. [Footnote 115: See, e.g., U.S. Telecom Ass’n v. 

FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). ] The Bevill Amendment contains no grant of 

authority for EPA to reverse a final regulatory determination that the agency has already properly 

reached pursuant to the Amendment’s prescribed procedures and deadlines. If EPA wishes to 

once more undertake the statutorily prescribed process for reaching a final Regulatory 

Determination for CCBs, it must obtain this authority from Congress. [Footnote 116: Southern 

Company supports USWAG’s comments on this issue. For further discussion, see USWAG 

Comments, supra note 41, at Part IV.] 

EPA is also considering defining CCBs as a “special waste” under the Subtitle C proposal. This 

designation would not ameliorate the consequences of Subtitle C coverage. As EPA notes, 

treatment of CCBs as a “special waste” would include regulation—

from the point of their generation to the point of their final disposition, including during and after 

closure of any disposal unit. This would include the generator and transporter requirements and 

the requirements for facilities managing CC[B]s, such as siting, liners (with modification), runon 

and run-off controls, groundwater monitoring, fugitive dust controls, financial assurance, 

corrective action, including facility-wide corrective action, closure of units, and post-closure care 

(with certain modifications). In addition, facilities that dispose of, treat, or, in many cases, store, 
114

CC[B]s also would be required to obtain permits for the units in which such materials are 

disposed, treated, and stored. [Footnote 117: 75 Fed. Reg. at 35133.] 

Designation of CCBs as either a hazardous waste or special waste under the Subtitle C proposal 

would effectively reverse decades of progress in the beneficial use of a valuable product. The 

potential benefits of the Subtitle C proposal are less than the potential benefits from either the 

Subtitle D proposal or a Subtitle D Prime approach. [Footnote 118: See id. at 35134 (Table 1).] 

Regulation of CCBs under Subtitle C would have even more substantial negative effects than 

regulation under Subtitle D or “D Prime,” including greater job losses and higher electric rates 

for consumers, without corresponding benefits to environmental protection. 

As discussed in Part II.A above, as among EPA’s three regulatory options, a modified Subtitle D 

Prime approach, properly developed with additional state regulatory oversight provisions, would 

be more flexible, practical, and effective than the Subtitle C proposal (or Subtitle D proposal). A 

modified Subtitle D Prime approach provides the same level of protection of human health and 

the environment with less duplication or preclusion of ongoing state and private efforts. 

Recognizing the importance of site- and region-specific controls, state agencies are better suited 

than EPA to administer any new requirements. Accordingly, for the reasons stated below, 

Southern Company recommends that EPA reject the inappropriate Subtitle C proposal

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06308-3

Organization1:NRG Energy Inc.

Commenter1:Verne Shortell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A.

The Rulemaking Record Supports the Subtitle D Option 

The development of Subtitle D regulations is consistent with EPA’s two Reports to Congress and 

EPA’s corresponding 1993 and 2000 Final Regulatory Determinations under the Bevill 

Amendment. Here the Agency concluded that the disposal of CCRs do not warrant hazardous 

waste regulation under RCRA Subtitle C but rather should remain under the jurisdiction of state 

regulatory programs under RCRA Subtitle D. EPA has consistently found that the Subtitle D 

approach, with active state involvement was the appropriate regulatory course for CCRs. 

Therefore, we recommend EPA follow through on its Final 2000 Regulatory Determination for 

CCRs by developing federal non-hazardous waste rules for the disposal of CCRs under Subtitle 
115

D. EPA should also consult with the states in determining how to regulate CCRs under RCRA 

subtitle D.

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

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

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06339-3

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 2.1.5

Comment Excerpt Text:

2) Subtitle C Regulation violates the clear language and the legislative purpose of the Bevill 

Amendment to RCRA In 1980, Congress amended RCRA with the passage of the Bevill 

Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste 

regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C 

regulation of CCRs and to promote their beneficial use. In fact, the sponsors of the Bevill 

Amendment specifically stated their concerns regarding the fate of beneficial use of CCRs under 

Subtitle C regulation of CCRs. For example, Representative Bevill stressed that a primary 

purpose of his amendment was to support the “national commitment to encourage reuse of such 

materials as fly ash.”[Footnote 16: 126 Cong. Rec. at 3362.] Representative Findley advised that 

if CCRs were regulated under Subtitle C, the “flourishing industry which recycles these 

byproducts would be gravely disrupted and possibly closed down.”[Footnote 17: Id. at 3363.] 

Representative Harley Staggers stated bluntly that regulation of CCRs as a hazardous waste 

“would run counter to one of the principal designs of [RCRA] – conservation of valuable 

material.”[Footnote 18: Id. at 3364-65.]

The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate 

CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to 

Congress on whether such regulation was warranted. With completion of the study and 

submission of the corresponding Report to Congress, the Bevill Amendment required EPA to 

make a final regulatory determination regarding whether CCRs should be regulated under 

Subtitle C.
116

The Bevill Amendment required the Agency to base this final regulatory determination “on 

information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings, 

and comment. . . .”[Footnote 19: RCRA § 8002(n), 42 U.S.C. § 6982(n).] EPA submitted its first 

Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue 

gas emission control waste generally do not exhibit hazardous characteristics under RCRA. 

Accordingly, EPA stated that it did not intend to regulate those four large-volume coal 

combustion waste streams. The initial report went on to encourage the utilization of coal 

combustion wastes to the extent that such utilization could be done in an environmentally safe 

manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion 

that hazardous waste regulation was not warranted for those four large-volume coal combustion 

waste streams.

In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a 

statutorily prescribed series of steps that involved congressional oversight marked by EPA’s 

submission of reports to Congress that would inform the relevant congressional committees of

jurisdiction of the Agency’s preliminary recommendations. [Footnote 20: 58 Fed. Reg. at 

42477.]

The second Report to Congress, submitted in March 1999, again concluded that Subtitle C is 

inappropriate to address any problems associated with disposal of several other fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes and that “the 

continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily 

prescribed assessment and reporting process when it issued its final Regulatory Determination 

for all remaining fossil fuel combustion wastes, including CCRs managed with certain lowvolume wastes.[Footnote 21: See 65 Fed. Reg. at 32214.] Echoing its first Regulatory 

Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not 

warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that 

regulation as a non-hazardous solid waste under Subtitle D of RCRA would be appropriate when 

CCRs are disposed of in landfills or surface impoundments.[Footnote 22: Id.]

Because of their diverse natures, CCR disposal facilities are ill-suited to regulation under the 

Subtitle C hazardous waste program. In its final determination that CCRs should not be subject 

to Subtitle C regulation in 2000, EPA stated that “it is more appropriate for individual States to 

have the flexibility necessary to tailor specific controls to the site or region specific risks posed 

by these wastes.”[Footnote 23: See NRECA Comments to this 2010 Proposed Rule (citing 58 

Fed. Reg. at 41477).]
117

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06362-3

Organization1:

Commenter1:Bret Reid, P.E.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

The EPA is also going against its own findings. In 1993 and again in 2000, the EPA found that 

coal ash "did not warrant regulation as a hazardous waste." 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-101

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle C option would constitute an impermissible reversal of EPA’s final 2000 

Regulatory Determination that CCR does not warrant hazardous waste regulation. It would also 

be in direct contravention of RCRA’s plain language establishing an unambiguous statutory 

process by which EPA can determine whether and how to regulate CCR under RCRA

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-13

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive
118

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:

In addition to the devastating impact that regulation under Subtitle C would have on the 

beneficial use of CCR, the Subtitle C option would constitute an impermissible reversal of 

EPA’s final 2000 Regulatory Determination that CCR does not warrant hazardous waste 

regulation. It would also be in direct contravention of RCRA’s plain language establishing an 

unambiguous statutory process by which EPA can determine whether and how to regulate CCR 

under RCRA. EPA is, at a minimum, obligated to adhere to the statutory procedures that 

Congress prescribed for making the original regulatory determination, including providing a 

Report to Congress setting forth its recommendation.[Footnote 6: Duke Energy refers EPA to the 

USWAG comments for a complete discussion of the legal and policy reasons why EPA cannot 

regulate CCR under the Subtitle C option.]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-17

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Moreover, by adopting the Subtitle D option, EPA would not reverse its final 2000 Regulatory 

Determination for CCR, but instead would support that determination by promulgating consistent 

federal non-hazardous waste rules for the disposal of CCR.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-21

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive
119

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It is also noted that while the 2000 Regulatory Determination for CCR identified areas where 

some state regulatory programs were lacking appropriate controls, EPA determined at the time 

that those concerns could be addressed under a federal Subtitle D regulatory structure. Thus, it 

follows that a state-implemented regulatory structure would ensure adequate management of 

CCR.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-72

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle C option in the Proposed Rule represents a reversal of EPA's two Reports to 

Congress and EPA's corresponding 1993 and 2000 Final Regulatory Determinations under the

Bevill Amendment. In those instances, EPA concluded that the disposal of CCR does not warrant 

hazardous waste regulation. Indeed, in its 2000 Final Regulatory Determination, EPA concluded 

that regulating CCR as non-hazardous waste under Subtitle D of RCRA would be fully effective 

in protecting human health and the environment. Nothing substantial in the Bevill studies has 

been identified since 2000 to change this conclusion. Moreover, it is significant that EPA 

completed the Bevill regulatory process for CCR in 2000, and that the statute does not authorize 

EPA to reverse that decision now. Therefore, Duke Energy endorses and concurs with 

USWAG’s assertions that the Subtitle C option in the Proposed Rule is legally flawed, and EPA 

is not at liberty to independently scuttle that statutory process.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 
120

Comment Number: EPA-HQ-RCRA-2009-0640-06398-77

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It is important to note that in the final 2000 Regulatory Determination, EPA recognized that the 

inflexible, one-size-fits-all nature of the Subtitle C hazardous waste program was simply 

inappropriate for the diverse nature of CCR disposal facilities. EPA cited this recognition as one 

of the deciding factors for its decision not to regulate CCR as a hazardous waste. Setting aside 

the regional differences of managing CCR in waste management units with various geological,

climatological, and hydrological characteristics, the sheer volume and the physical composition 

of CCR makes compliance with Subtitle C requirements extremely burdensome – with no greater 

human health or environmental benefit.

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06416-25

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

In response to page 35148, III. Overview and Summary of the Bevill Regulatory Determination 

and the Proposed Subtitle C and Subtitle D Regulatory Options, the discussion states that in May 

2000, EPA concluded disposal of CCRs did not warrant regulation under Subtitle C, but did 

warrant regulation under Subtitle D of RCRA. WDNR supports EPA’s May 2000 conclusion and 

believes EPA should use its limited resources to develop a subtitle D program as discussed in 

this set of comments. This seems to be an effective management approach given the experience 

WDNR has with these materials as opposed to beginning the regulatory assessment again. Any 

potential benefits that may be gained by going with subtitle C regulations will be lost in the time 

and effort to develop and implement subtitle C regulations.
121

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06446-1

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

II. Background of the Bevill Amendment

In 1980, Congress amended (“RCRA”) with the passage of the Bevill Amendment to ensure that 

EPA would not inappropriately subject CCRs to hazardous waste regulation. The amendment 

was intended to avoid the excessive costs associated with Subtitle C regulation of CRs and to 

promote their beneficial use. The Bevill Amendment addressed these concerns by suspending 

EPA’s authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency 

completed a study and reported to Congress on whether such regulation was warranted. With 

completion of the study and submission of the corresponding Report to Congress, the Bevill 

Amendment required EPA to make a final regulatory determination regarding whether CCRs 

should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this 

final regulatory determination “on information developed or accumulated pursuant to [the RCRA 

§ 8002] study, public hearings, and comment. . . .” RCRA § 8002(n), 42 U.S.C. § 6982(n). In 

short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a 

statutorily-prescribed series of steps that involved congressional oversight marked by EPA’s 

submission of reports to Congress that would inform the relevant congressional committees of 

jurisdiction of the Agency’s preliminary recommendations.

III. Implementation of the Bevill Amendment

EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom 

ash, boiler slag, and flue gas emission control waste generally do not exhibit hazardous 

characteristics under RCRA. Accordingly, EPA stated that it did not intend to regulate those four 

large-volume coal combustion waste streams. The initial report went on to encourage the 

utilization of coal combustion wastes to the extent that such utilization could be done in an 

environmentally safe manner. Six months later, EPA reiterated in its first Regulatory 

Determination the conclusion that hazardous waste regulation was not warranted for those four 

large-volume coal combustion waste streams. 58 Fed. Reg. at 42477.

The second Report to Congress, submitted in March, 1999, again concluded that Subtitle C is 

inappropriate to address any problems associated with disposal of several other fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes and that “the 

continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily-
122

prescribed assessment and reporting process when it issued its final Regulatory Determination 

for all remaining fossil fuel combustion wastes, including CCRs managed with certain lowvolume wastes. See 65 Fed. Reg. at 32214. Echoing its first Regulatory Determination, EPA 

concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under 

RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a nonhazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed 

of in landfills or surface impoundments. Id.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06534-7

Organization1:Lafarge North America Inc.

Commenter1: Brian Gasiorowski on behalf of Craig S. Campbell

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

The current proposal for Subtitle C regulation, also contradicts EPA’s prior position as stated in 

the two prior Reports to Congress, which concluded that the regulation of CCRs is not 

warranted. EPA now claims to support an opposite conclusion – Subtitle C regulation – and the 

Report to Congress should be updated to reflect the basis of EPA’s current position. In addition, 

the public would then have the opportunity to peer review the updated information used by EPA 

in justifying Subtitle C regulation of CCRs. The seventeen “problem projects” should not be the 

basis for potentially destroying CCR utilization in the United States

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06820-6

Organization1:Western Business Roundtable

Commenter1: Holly Propst

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 2.1.1

Comment Excerpt Text:

2. Treatment of CCPs as “hazardous waste” under RCRA Subtitle C is inappropriate. 

The Roundtable joins dozens of Members of Congress, state policymakers, including the 

National Governors Association, Western Governors Association, numerous state environmental 

protection agencies and vast numbers of private parties in opposing categorization of CCRs as 

hazardous waste under Subtitle C of RCRA. Such a step would have far-reaching and negative 

impacts on the U.S. economy and severely hamper the energy production and electricity 
123

generation sectors’ – including a number of Roundtable members’ – abilities to meet the nation’s 

burgeoning energy demands. 

The Roundtable wishes to associate itself with the detailed comments submitted by a variety of 

organizations, including the Utility Solid Waste Activities Group (USWAG), NMA and others, 

regarding the legal frailties associated with this alternative. In short: the proposed RCRA Subtitle 

C option would constitute an impermissible reversal of the Agency’s 2000 final Bevill 

Regulatory Determination for CCRs.

Such a reversal would be a direct contravention of the plain language of Subtitle C, which lays 

out clear and specific procedures EPA is to follow to determine whether and how to regulate 

CCRs under the Act. That statutory process sets up a one-time-only determination. It does not 

contemplate reversal of the final determination. 

Even assuming the statute did allow EPA to make a new determination, it could not contravene 

the statutory procedures Congress laid out for such determinations, including: a technicallysupported determination, reporting to Congress, consultation with states and public stakeholder 

input. 

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

apply RCRA retroactively. The law has always been prospective, as it relates to regulatory 

requirements. Yet, in this alternative, EPA seems to be seeking regulation of inactive or 

previously closed CCR surface impoundments. This seems to us outside the recognized scope of 

the statute.

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency 

has also determined that regulation of inactive CCR surface impoundments as defined in 

section 257.53 is appropriate and necessary as discussed in Unit VI of the preamble supporting 

this rule. The commenter is referred to the applicability section of the preamble for a complete 

discussion. 

Comment Number: EPA-HQ-RCRA-2009-0640-06827-2

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 3.1.2

Comment Excerpt Text:

II. The Subtitle C Option is Inconsistent with the Bevill Amendment

Briefly, the Bevill Amendment to RCRA was the direct result of Congress's concern that the 

U.S. Environmental Protection Agency might discourage the use of coal as one of the nation's 

primary sources of energy if it prematurely and inappropriately subjected CCRs to regulation 

under the hazardous waste provisions of RCRA Subtitle C. I Accordingly, when Congress 
124

enacted the Amendment into law in 1980, it effectively suspended the Agency's authority to 

regulate CCRs under Subtitle C until the Agency completed a study to determine whether in fact 

such regulation was warranted and submitted a report to that effect to Congress. The Amendment 

also required the Agency to make a "final regulatory determination" whether to subject CCRs to 

Subtitle C regulation following submission of the aforementioned report to Congress. In short, 

the Bevill Amendment was intended to address Congress's concern by cautioning the Agency not 

to impose unnecessary and costly regulations on those industries using coal to produce 

electricity. It also reflects Congress's concern that regulating CCRs under Subtitle C could 

discourage and perhaps end altogether the beneficial use of CCRs.

Thus, through the Bevill Amendment Congress singled out CCRs for special consideration by 

the Agency in determining whether, and how, to regulate them under RCRA, with Subtitle C 

regulation representing an option of last resort. The Agency could reach the decision to regulate 

CCRs under Subtitle C only after following a statutorily prescribed series of steps that involved 

congressional oversight marked by the Agency's submission of a report to Congress that would 

inform the relevant congressional committees of jurisdiction of the Agency's preliminary 

recommendation. The final regulatory determination was to be issued according to a statutorilyimposed deadline and based on public hearings and comments responding to the report to 

Congress.

Shortly after enactment of the Bevill Amendment and completion of the requisite study, the 

Agency began to prepare its report to Congress by dividing it into two phases. The I Ref. RCRA 

§ 300J(b)(3)(A), 42 U.S.C. § 692J(b)(3)(A). initial phase addressed the management of CCRs 

independent of any other wastes that are generated by coal-fired power plants during the course 

of producing electricity. The second phase addressed CCRs that are co-managed with certain low 

volume wastes (i.e. boiler cleaning solutions, boiler blowdown, demineralizer regenerant, pyrites 

and cooling tower blowdown) that are routinely generated by those plants.

Pursuant to this two-phased approach, the Agency submitted its first report to Congress in 

March, 1988. In the report, the Agency concluded that CCRs that are managed independent of 

the aforementioned low volume wastes generally do not exhibit any of the hazardous 

characteristics under the current RCRA regulations and therefore do not warrant regulation under 

Subtitle C of RCRA. In August, 1993, the Agency published a final regulatory determination to 

that effect in which it reiterated that the regulation of CCRs under Subtitle C ofRCRA was not 

warranted.

Shortly after the August, 1993 final regulatory determination was published, the Agency began 

work on its second repOtt to Congress on CCRs that are co-managed with the aforementioned 

low volume wastes. In March, 1999, the Agency submitted its second report to Congress in 

which it concluded that CCRs when co-managed with those wastes do not warrant regulation 

under Subtitle C of RCRA. In May, 2000, the Agency published a final regulatory determination 

to that effect in which it reiterated that comanaged CCRs do not warrant regulation under 

RCRA's Subtitle C hazardous waste program. Instead, the Agency indicated that CCRs should 

more appropriately be regulated under the solid waste provisions of RCRA Subtitle D where they 

are disposed of in landfills or surface impoundments. 

In light of the above, the legal framework by which the two proposed primary regulatory options 

must be evaluated is the Bevill Amendment. It is OO&E's opinion that the proposed rule's 

Subtitle C option represents an impennissible reversal of the Agency's final regulatory 

determinations for CCRs. Specifically, the proposed Subtitle C option is in direct conflict with 

the plain language of the Bevill Amendment that established an unambiguous statutory process 
125

by which the Agency can determine to what extent CCRs should be regulated under RCRA and 

which does not provide a mechanism to reverse those determinations. Put another way, having 

completed the final regulatory determination process for CCRs in May, 2000 pursuant to a 

statutorily prescribed mandate, the Agency is not at liberty to undo that process. Even assuming 

arguendo that RCRA provides a mechanism for the final regulatory determinations to be 

reversed, the Agency would still be obligated to adhere to the process that Congress prescribed 

for making the original detenninations, including providing a report to Congress that sets forth its 

recommendation to reverse those determinations. In short, OO&E believes that the Agency has 

ignored the statutory process by including the Subtitle C option in the proposed rule.

While OO&E has several concerns with the Subtitle D option, it nevertheless represents a more 

appropriate regulatory structure under which the Agency could promulgate federal regulations 

for CCRs. Under the Subtitle D option, the Agency would not be attempting to reverse its final 

regulatory determinations for CCRs and run afoul of the statutory process established by 

Congress. Instead, by promulgating federal non-hazardous solid waste regulations for the 

disposal of CCRs under Subtitle D of RCRA, CCRs would remain classified as a non-hazardous 

solid waste and the Agency could develop nationwide self-implementing regulations for CCR 

disposal facilities

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06827-6

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3

Comment Excerpt Text:

IV. The Subtitle C Option Will Harm the Beneficial Use of CCRs

In the proposed rule, the Agency states that regulating CCRs under the Subtitle C option will 

actually increase their beneficial use. The Agency's position in that regard is not only in direct 

conflict with its earlier position on the matter but ignores a wealth of information to the contrary 

that has been provided to the Agency by a variety of sources, both public and private.

For example, in its May, 2000 final regulatory determination, the Agency stated that the stigma 

from regulating CCRs under Subtitle C of RCRA via a contingent management approach could 

harm the beneficial use of CCRs. As the Agency explained in rejecting the Subtitle C contingent 

management approach:

"We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) [of 

RCRA] directs us to consider, among other factors, the current and potential utilization of such 

materials. IndustlY commenters have indicated that they believe subjecting any coal combustion 
126

wastes to a subtitle C regime would place a significant stigma on these wastes, the most import 

effect being that it would adversely impact beneficial reuse. EPA believes the contingent 

management scheme we discussed should diminish any stigma that might be associated with the 

subtitle C link. Nonetheless, we acknowledge the possibility that the approach could have 

unintended consequences. We would be particularly concerned about any adverse effect on the 

beneficial re-use market for these wastes ... ".

The Agency continued:

"Normally, concerns about stigma are not a deciding factor in EPA's decisions under RCRA, 

given the central concern under the statute for protection of human health and the environment. 

However, given our conclusion that the subtitle D approach here should be fidly effective in 

protecting human health and the environment, and given the large and salutmy role that 

beneficial reuse play for this waste, concern over stigma is a factor supporting our decision today

that subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach. 

"

As evidenced by the above, after more than two decades of research following which the Agency 

concluded that CCRs did not walTant Subtitle C regulation and acknowledged that just the 

possibility of subjecting CCRs to such regulation could adversely impact CCR beneficial use; 

and an additional 10 years since the Agency published it final regulatory determination to that 

effect, it is surprising that the Agency now takes the position that subjecting CCRs to Subtitle C 

regulation will actually promote their beneficial use. Just as surprising is the fact that the Agency 

fails to provide any reasoned explanation for this change in position.

Since the Agency first initiated this rulemaking and advised that it was considering reversing its 

final regulatory determinations and regulating CCRs under RCRA Subtitle C, the Agency has 

received hundreds of letters and both oral and written testimony at public hearings, not to 

mention Congressional testimony from a wide spectrum of third parties directly involved in the 

business of regulating, conducting research, establishing nation-wide industry standards, 

marketing and beneficially using CCRs. These letters and testimony reiterated what the Agency 

acknowledged in the May, 2000 final regulatory determination: that the mere threat of regulating 

CCRs under Subtitle C would adversely impact their beneficial use.

Rather than substantiate its theory that the beneficial use of CCRs will increase under Subtitle C, 

the Agency has shifted the burden of proving that such regulation will have an adverse impact on 

their beneficial use on industry. In that regard, since publication of the proposed rule, ash 

marketers have stated that they will seriously consider avoiding tlle use of CCRs generated by 

coal-fired power plants in applications such as cement and asphalt manufacturing as well as soil 

stabilization if the Agency decides to regulate CCRs as a hazardous waste. Their concerns are 

not surprising; the potential liability associated with using a material that the Federal government 

has decided is a hazardous waste outweigh tlle benefits that otherwise result from its use. The net 

effect of their decision could result in the disposal of these CCRs at a Subtitle C hazardous waste 

landfill, the exorbitant cost of which will ultimately be paid by consumers.

Moreover, if the marketplace decides that CCRs are not appropriate for beneficial use, those that 

are currently used in various applications will be disposed and possibly replaced by virgin 

materials which would have to be mined or otherwise produced in ways that could be 

environmentally harmful. Indeed, according to the Agency's own Coal Combustion Products 

Partnership website, beneficially using CCRs saves virgin resources, reduces energy 

consumption and greenhouse gas emissions. By developing a regulatory scheme that discourages 

the beneficial use of CCRs, the risk of environmental harm could actually increase by increasing 
127

the use of virgin resources and energy consumption while increasing greenhouse gas emissions.

Thus, the Agency's proposal to regulate CCRs as a hazardous waste under the Subtitle C option 

10 years after it decided not to do so via its May, 2000 final regulatory determination not only 

ignores the statutory process established under the Bevill Amendment through which it arrived at 

that decision, it also ignores the concerns that Congress had at the time the Amendment passed: 

that the regulation of CCRs under Subtitle C will have an adverse impact on the beneficial use of 

these materials while encouraging the use of and reliance on virgin resources, both of which run 

counter to one of the fundamental underpinnings of RCRA

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06835-1

Organization1:U.S. Senate

Commenter1: Kyle D. Miller on behalf of James M. Inhofe

Commenter Type: Federal Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

On July 29, 20 I0, I joined a number of my Senate colleagues to oppose, for a variety of reasons, 

the regulation of CCRs under RCRA Subtitle C. I write to raise a more fundamental concern 

with the proposed Subtitle C option. The Subtitle C option assumes that EPA can summarily 

reverse its final 2000 Regulatory Determination that CCRs do not warrant hazardous waste 

regulation, an action that I do not believe EPA has the authority to undertake. 

Before making any final regulatory determination for CCRs, Congress, through the l3evill 

Amendment, directed EPA to first study CCRs pursuant to the eight statutory study factors and 

then "publish a report on such study, which shall include appropriate findings." [Footnote 1: 

RCRA Section 8002(n).] Such "study and findings shall be submitted to the Committee on 

Environment and Public Works or the United States Senate and the Committee on Energy and 

Commerce of the United States House of Represel1tatives..· [Footnote 2: Id.] Following 

submission of the report to the appropriate Congressional Committees. the statute requires that 

EPA conduct public hearings and provide an opportunity for comment on the Report to 

Congress, and then either determine to promulgate regulations" for CCRs under RCRA Subtitle 

C or determine that such regulations are unwarranted. [Footnote 3: RCRA Section § 

3001(bX3XC).] Following this process, EPA is directed to publish its regulatory determination, 

"which shall be based on information developed or accumulated pursuant to such study, public 

hearings and comment in the Federal Register accompanied by an explanation and justification 

of the reasons for it. [Footnote 4: Id.] 

EPA completed this statutory decision-making process for CCRs in 2000 when it issued its final 

Bevill Regulatory Determination concluding, based on its 1999 Report to Congress and public 

hearings and comments on that report, that CCRs do not warrant regulation under RCRA Subtitle 
128

C. The statute does not authorize EPA to decide independently to revisit this decision and reverse 

its final CCR Regulatory Determination under a process of its own creation. 

EPA's implicit assumption that it can proceed with the Subtitle C option, that it could issue a new 

regulatory determination for CCRs without first providing Congress with the statutorily required 

report on its recommendation, is extremely troubling. The statute is clear regarding such action: 

prior to making a final regulatory determination for CCRs, EPA is required to provide both the 

Senate Environment and Public Works Committee and the House Energy and Commerce 

Committee a report detailing its initial regulatory recommendation. The statute also makes clear 

that any final regulatory determination must be based on such Report to Congress. This process 

is critical to ensure that Congress retains its oversight role of EPA's deliberative process under 

which it determines whether and how to regulate CCRs. EPA has not prepared a Report to 

Congress informing the relevant Congressional Committees of jurisdiction that the Agency 

intends to reverse course and regulate CCRs under RCRA Subtitle C. 

This failure is especially troubling given that both an earlier 1988 Report to Congress and its 

second 1999 Report to Congress made clear that CCRs do not warrant regulation under RCRA's 

Subtitle C hazardous waste program and that EPA did not intend to pursue this regulatory path. 

Now, more than ten years after determining that CCRs do not warrant regulation under Subtitle 

C, EPA is proposing to reverse that decision without explaining its reasoning to Congress as 

required by the statute. This failure deprives Congress of its statutorily-prescribed oversight role 

to be fully informed of any such recommendation so that it can evaluate and respond, as 

appropriate, to the Agency's recommended course of action before EPA makes a final regulatory 

determination for CCRs. Such an approach is inconsistent with the statute which requires that 

any final regulatory determination be based on the Report to Congress.

As the Ranking Member of the Senate Environment and Public Works Committee, I am deeply 

troubled by both EPA's assumption that it can summarily reverse its final Regulatory 

Determination for CCRs and with its apparent conclusion that it can do so without adhering to 

the statutorily prescribed procedures for making such a decision, including the publication of a 

Report to Congress informing the relevant Congressional committees of jurisdiction of the 

Agency's initial recommendation. I therefore believe EPA cannot pursue the Subtitle C option 

for CCRs set forth in the recent proposal

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06849-9

Organization1:Little Village Environmental Justice Organization (LVEJO)

Commenter1: Keith Harley
129

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

U.S. EPA’s rulemaking “alternatives” fail to account for strict limits on its authority under 

RCRA in light of the Supreme Court’s decision in City of Chicago v. EDF. LVEJO asserts that 

U.S. EPA has significantly overestimated its authority under RCRA to exempt CCR, and the 

facilities that generate it, from Subtitle C. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-12

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.4

Comment Excerpt Text:

EPA completed the Bevill regulatory process for CCRs in 2000; the statute does not authorize 

EPA to reverse that decision. EPA has completed the Bevill process pursuant to a judiciallyimposed deadline and determined, in accordance with the congressionally-mandated decisionmaking process, that CCRs do not warrant regulation under Subtitle C. The statutory decisionmaking process is complete and RCRA does not authorize EPA to decide to “take a second bite 

at the apple” and reverse its final CCR Regulatory Determinations in a manner of its own 

choosing. 

Congress established a detailed process by which EPA could determine whether and how to 

regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining 

that CCRs do not warrant regulation under RCRA Subtitle C, and concluded instead that CCRs 

warrant regulation under RCRA’s Subtitle D non-hazardous waste program. The statute does not 

contemplate, let alone authorize, EPA undertaking another round of the Bevill decision-making 

for CCRs. If it did, the statutory process and its associated deadlines for reaching a final 

Regulatory Determination would have no meaning, and EPA could continually change its mind 

in an abbreviated fashion, as illustrated by the proposed Subtitle C option. 

If EPA wishes to once more undertake the statutorily-prescribed process for reaching a final 

regulatory determination for CCRs, it must obtain this authority from Congress. If Congress 

were to grant EPA such authority, it would be reasonable to expect that Congress would establish 

new statutory deadlines and perhaps new and different statutory study factors for EPA to 

evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority 
130

from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory 

Determinations for CCRs. Therefore, EPA cannot legally pursue the Subtitle C option. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06868-1

Organization1:Cleco Corporation

Commenter1: Bill Matthews

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

Cleco finds the arguments in the USWAG Comments to be most compelling. One of the major 

items referred to throughout the USWAG Comments is the Bevill Amendment. A most 

interesting and accepted point drawn from the Bevill Amendment, the legislative history of the 

Amendment and court statements concerning the Amendment is that EPA cannot reverse it's 

CCR regulatory determinations, in 1993 and 2000, to regulate coal combustion residuals through 

the Subtitle D program. Cleco agrees with this deduction described in the USWAG Comments 

and urges EPA to comply with the Bevill Amendment requirements.

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06956-2

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

A. The Rulemaking Record Supports The Subtitle D Option

At the outset, it is important to reiterate that the development of Subtitle D non-hazardous waste 

regulations for CCRs is fully consistent with the rulemaking record; in fact, it is the only lawful 

option available to the Agency. The development of Subtitle D regulations would be the 
131

appropriate outgrowth of EPA’s two Reports to Congress and two final Regulatory 

Determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous 

waste regulation under RCRA Subtitle C, but rather should remain the province primarily of 

state regulatory programs under RCRA Subtitle D. Throughout its 20-year study and issuance of 

the required Reports to Congress and final CCR Regulatory Determinations, EPA has 

consistently found that the Subtitle D approach, with active state involvement, was the 

appropriate regulatory course for CCRs. In its first CCR Regulatory Determination in 1993, EPA 

concluded that, given that “the potential for damage from these wastes is most often determined 

by site- or region-specific factors,” the “current State approach to regulation” under RCRA 

Subtitle D is most appropriate. EPA echoed this finding in its second Report to Congress in 

1999, concluding once again that RCRA Subtitle C is inappropriate to address any problems 

associated with disposal of these wastes and that the continued use of site and region specific 

approaches by the states under RCRA Subtitle D is more appropriate for addressing the limited 

human health and environmental risks that may be associated with disposal of these wastes.

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR Regulatory 

Determination, concluding that the Subtitle D regulations are the most appropriate mechanism 

for ensuring that CCRs disposed in landfills and surface impoundments are managed safely. In 

addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that 

the decisive factors in reaching its final determination that CCRs do not warrant regulation under 

RCRA’s Subtitle C hazardous waste regulations were: (1) improving trends in present CCR 

disposal and utilization practices (per the Bevill study factor in 8002(n)(2)), (2) the current and 

potential utilization of CCRs (i.e., beneficial use), per the Bevill study factor in 8002(n)(8), and 

(3) Congress' admonition in the Bevill Amendment against duplication of efforts by other federal 

and state agencies.

In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to 

the 1999 Report to Congress, that stated “the utility industry has made significant improvements 

in its waste management practices over recent years and to similar record evidence that state 

[CCR regulatory] programs have, in fact, substantially improved over the last 15 years or so." 

EPA found that "the ability for most states to impose specific regulatory controls for coal 

combustion wastes has increased almost three-fold over the past 15 years”. EPA concluded that, 

with the exception of relatively few states, the regulatory infrastructure is generally in place at 

the state level to ensure adequate management of these wastes. Critically, this positive trend has 

continued, with EPA and DOE finding in their joint 2007 Report of state CCR controls that [t]he 

data and analyses documented in this report provide new information that appears to show 

improved management of CCWs in both landfills and surface impoundments

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06987-16

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company
132

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

EPA Does Not Have the Authority to Reverse Its Final Regulatory Determination Under 

The Bevill Amendment

EPA completed the statutorily-required Bevill Amendment process in May 2000 when it issued 

its final Regulatory Determination for all remaining fossil fuel combustion wastes, including 

CCRs managed with certain low-volume wastes. Based on the record evidence, hearings, and 

public comment on the 1999 Report to Congress, EPA once again concluded that CCRs and 

other fossil fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C 

hazardous waste program. EPA concluded instead that the development of national nonhazardous solid waste regulations under RCRA Subtitle D is appropriate when CCRs are 

disposed of in landfills or surface impoundments.[Footnote 4: 65 Fed. Reg. 32214 (May 22, 

2000)].

Entergy believes that the primary issue with the proposed Subtitle C option is that it is premised 

on the notion that EPA may, at will, reverse its final Regulatory Determinations that CCRs do 

not warrant regulation under Subtitle C of RCRA. However, the statute does not authorize EPA 

to reverse these final Regulatory Determinations; thus EPA may not adopt the Subtitle C 

hazardous waste option for CCRs. Additionally, EPA’s proposal to regulate CCRs under Subtitle 

C does not meet the intent of the Bevill Amendment’s statutorily-prescribed decision-making 

process.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time.

Comment Number: EPA-HQ-RCRA-2009-0640-06987-17

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.4

Comment Excerpt Text:

In the event that Congress were to grant EPA the authority to undertake an additional regulatory 

determination for CCRs, Congress could establish new and different statutory deadlines and 
133

perhaps new and different statutory study factors for EPA to evaluate. Absent such authority 

from Congress, Entergy does not believe that EPA may alter its final 1993 and 2000 regulatory 

determinations for CCRs, nor pursue its Subtitle C proposed option.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-19

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Compliance Issues with Subtitle C Make This Option Unworkable 

One of the fundamental reasons EPA cited for deciding not to regulate CCRs in its final 

Regulatory Determination for the four large-volume CCRs was the recognition that the 

inflexible, one-size-fits-all nature of the Subtitle C hazardous waste program simply was not 

appropriate for the diverse nature of CCR disposal facilities. As EPA explained in its 2000 

Regulatory Determination:

If such wastes were placed in the Subtitle C universe, all ash disposal units would be required to 

meet specific liner and monitoring requirements. Since [CCR] sites vary widely in terms of 

topographical, geological, climatological, and hydrological characteristics (e.g., depth to 

groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes 

potential to leach into the groundwater and travel to exposure points is linked to such factors, it is 

more appropriate for individual States to have the flexibility necessary to tailor specific controls 

to the site or region specific risks posed by these wastes. Footnote 5: 58 Fed. Reg. at 41477.].

This conclusion remains true today.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-24

Organization1:Entergy Services, Inc.
134

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In EPA’s 2000 Regulatory Determination, EPA concluded that CCRs did not warrant regulation 

under Subtitle C and that any final decision takes into account the beneficial reuse of such 

materials. EPA noted based on comments received that subjecting any coal combustion wastes to 

a Subtitle C regime would place a significant stigma on these wastes, the most important effect 

being that it would adversely impact beneficial reuse.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07001-9

Organization1:Vectren Corporation

Commenter1: Angila M. Reinerford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Indeed, EPA explicitly recognized the potential negative perception issues attached to a 

hazardous waste classification for these materials when it rejected a hazardous waste 

classification for CCRs in its 2000 Final Regulatory Determination [Footnote 4: 65 Fed. Reg. 

32217.] .

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07047-4

Organization1:Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

EPA itself has determined on two occasions (1993 and 2000 Final Determinations) that CCR 

properties do not warrant their regulation as a hazardous waste. 
135

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-2

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.4

Comment Excerpt Text:

The proposed rule is illegal because it violates the Bevill Amendment to RCRA which 

specifically limits EPA's ability to regulate CCR. EPA can consider CCR regulation only in 

extremely limited circumstances and only after extensive analysis of the science and risk issues 

associated with CCR disposal. On two prior occasions, in 1993 and 2000, EPA issued 

comprehensive reports pursuant to the Bevill Amendment regarding CCR and in both instances 

determined that CCR should not be regulated under Subtitle C. The 2000 determination noted the 

array of potential issues, but found that those issues did not justify or require the extreme cost 

and difficulty of regulating such a vast quantity of low risk material under Subtitle C.

As an initial matter, EPA's action here is illegal because EPA no longer has any authority to 

regulate CCR as a hazardous waste. Having submitted the required report and mage its 

determination that regulationof CCR as a hazardous waste is unwarranted, EPA is done. The 

Bevill Amendment has no language allowing EPA to revisit its determination. Unless or until 

Congress amends RCRA to grant EPA the authority to reconsider its 2000 findings, EPA has no 

authority to regulate CCR as a hazardous waste.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-3

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 10.4.2

Comment Excerpt Text:

EPA claimed to retain authority to revisit this issue in its 2000 determination primarily based on 
136

its desire to ensure that industry continued its trend toward voluntary control. Yet in issuing the 

current proposed action, EPA simply ignores the continuing (and expanding) trend toward 

control of CCR disposal, including the burgeoning development of numerous new and more 

sustainable beneficial uses which have expanded exponentially since EPA's 2000 determination. 

Not only is EPA evading the sole ground it might have for reopening its 2000 decision, it is 

paradoxically proposing to stop this very positive trend by taking action to stifle these beneficial 

uses, impede the development of further beneficial measures. As a result, EPA's proposed action 

would significantly expand the very risks that EPA claims to address, making that action illegal, 

wrong-headed and counter-productive.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-07803-7

Organization1:GDF SUEZ Energy Generation North America

Commenter1: Bradley J. Cooley

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

GSEGNA Concerns with the Subtitle C Approach

GSEGNA opposes regulating coal combustion residuals as a hazardous waste. Based upon 

voluminous historical data regarding the physical and chemical properties of these residuals, 

such a classification is simply not warranted. Even EPA itself, in a May 22, 2000 “Regulatory 

Determination from Fossil Fuels – Final Rule”, concluded that these materials do not warrant 

regulation under Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08221-3

Organization1:NextEra Energy, Inc.

Commenter1: Tomey Tuttle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2

Comment Excerpt Text:

For the many reasons elaborated upon in the comments submitted by USW AG including 

questions of legality, damage to the beneficial use markets, and increased electric costs, NextEra 
137

Energy holds that a reversal of the 2000 Bevill determination and regulation of CCR as a 

hazardous waste under the proposed rule is not appropriate. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08229-5

Organization1:Alabama Public Service Commission

Commenter1: John D. Free

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 3.1.2

Comment Excerpt Text:

Previously, the EPA determined that CCBs do not warrant regulation as a RCRA Subtitle C 

hazardous waste. The APSC understands that EPA issued two formal reports to Congress, in 

1988 and 1999, in which it concluded that CCBs do not warrant regulation as a hazardous 

substance. In addition, in 1993 and 2000, the EPA issued formal regulatory determinations that 

the preferable approach for regulating CCBs was under RCRA Subtitle D, and not Subtitle C, as 

the latter course would adversely impact CCB beneficial use. The APSC agrees with that 

conclusion. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08229-7

Organization1:Alabama Public Service Commission

Commenter1: John D. Free

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

In this respect, the APSC questions the need for any drastic change to existing practices, 

especially when CCBs are being managed and utilized in a manner that is sufficiently protective 

of human health and the environment. Stated differently, the APSC is not convinced that a single 

failure of a CCB impoundment facility, namely the TVA Kingston spill, by itself justifies the 

conclusion that CCBs are hazardous and that all existing disposal facilities and practices should 

be eliminated in favor of new, extremely costly approaches. To this end, the APSC is not aware 

of any conclusive findings or information that refutes the previous determinations made by EPA 

regarding the need to regulate CCBs as hazardous substances. 
138

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-1

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

III. EPA’S PROPOSAL TO LIST CCRs AS A “SPECIAL WASTE” SUBJECT TO RCRA 

SUBTITLE C REQUIREMENTS IS NOT SUPPORTED BY THE AVAILABLE DATA AND 

IS CONTRARY TO LAW

A little over 30 years ago, Congress reauthorized RCRA and exempted from regulation as a 

hazardous waste specific large-volume wastes generated from the combustion of coal or other 

fossil fuels [Footnote 2: See Section III.A for a more thorough discussion of the Congressional 

exemption of CCRs.]. Congress also directed EPA to conduct a detailed and comprehensive 

study based on eight study factors and to submit a Report to Congress on “the adverse effects on 

human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom 

ash waste, slag waste, flue gas emission control waste, and other byproduct materials generated 

primarily from the combustion of coal or other fossil fuels.”[Footnote 3: 42 U.S.C. § 6982(n).] 

Congress was concerned then, as it undoubtedly would be today, that such a listing would 

unfairly burden coal-fired EGUs and as a result would diminish an important domestic energy 

source – while being unnecessary to protect human health or the environment. EPA has 

conducted a number of studies and issued determinations since that time all supporting the 

exemption of CCRs from regulation under Subtitle C.

The first Report to Congress (“RTC”) was published in 1988 and addressed the eight study 

factors required under Section 8002(n) of RCRA for CCRs from electric utilities. Based on the 

RTC, EPA developed the following three preliminary findings:

1) Large-volume wastes – The majority of materials present in the four largevolume wastes are 

not of major concern. Although trace constituents in the wastes may, in some instances, present 

risks to human health and the environment, EPA’s review of the data suggested that these wastes 

rarely do not exceed the RCRA TC thresholds [Footnote 4: In evaluating Large-Volume CoalFired Utility Wastes, EPA said, "The Agency has determined that these wastes exhibit the 

characteristics of hazardous waste infrequently, from 0 to 7 percent of the samples depending on 

the waste type," and that this analysis indicates that the “waste[s] rarely exhibit any 

characteristics of hazardous waste and the waste pose very limited risk to human health or the 

environment...” 58 Fed. Reg. 42,446, 42476 (Aug. 9, 1993) (emphasis added).] In addition, the 

RTC concluded that current waste management practices appear to be adequate for protecting 

human health and the environment and that regulation of large volume CCRs under Subtitle C 

was not warranted.
139

2) Low-volume wastes – Several low-volume wastes typically generated by coalfired electric 

utilities may exhibit the hazardous waste characteristics of corrosivity and toxicity and that the 

Agency was considering removing the exemption for low-volume wastes.

3) Waste utilization – EPA concluded that waste utilization practices appeared to be conducted in 

an environmentally safe manner[Footnote 5: U.S. EPA, Report to Congress: Wastes from the 

Combustion of Coal by Electric Utility Power Plants, EPA/530-SW-88-002 at ES-6 – ES-8 (Feb. 

1988).].

EPA would eventually issue a regulatory determination in 1993 finding that the large volume 

CCRs from coal-fired EGUs should not be regulated under Subtitle C. The second report to 

Congress, issued in 1998, covered CCRs from coal-fired EGUs that were disposed with other 

wastes, as well as CCRs from the non-utility sector. On May 22, 2000, EPA published a Notice 

of Regulatory Determination on Wastes From the Combustion of Fossil Fuels. The determination 

applied to all remaining fossil fuel combustion wastes other than high volume CCRs from EGUs 

that were managed separately, which were addressed in the 1993 regulatory determination. In the 

May 2000 determination, EPA concluded that:

[T]hese wastes do not warrant regulation under subtitle C of RCRA and is retaining the 

hazardous waste exemption under RCRA section 3001(b)(3)(C). However, EPA has also 

determined national regulations under subtitle D of RCRA are warranted for coal combustion 

wastes when they are disposed in landfills or surface impoundments, and that regulations under 

subtitle D of RCRA (and/or possibly modifications to existing regulations established under 

authority of the Surface Mining Control and Reclamation Act (“SMCRA”)) are warranted when 

these wastes are used to fill surface or underground mines [Footnote 6: For a more complete 

discussion of the 1993 and 2000 determinations, please see Sec. III D. 1. a. Notice of Regulatory 

Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,214 

(May 22, 2000).].

Given the issues studied and the consideration of how CCRs should be regulated under RCRA 

over the years, the Agency’s current proposal to list CCRs destined for disposal as “Special 

Wastes” subject to RCRA Subtitle C is at odds with its prior determinations, not supported by 

the data in the administrative record, and does not comply with the applicable legal requirements 

for regulating solid wastes under Subtitle C

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-5

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.4

Comment Excerpt Text:

D. EPA’s Subtitle C Proposal Is Premised On A Dramatic Overstatement Of The Risks Posed By 

CCRs
140

In addition to its unjustified lumping of CCR materials into one class, this Section explains why, 

based on the data presented in the record, EPA has not satisfied its burden under RCRA of 

establishing that the CCRs (whether considered in the aggregate or individually) “typically or 

frequently are hazardous.”[Footnote 61: 40 C.F.R. § 261.11(b) (emphasis added).] EPA’s 

suggestion that these materials pose a substantial risk is premised on: (1) a risk assessment that 

dramatically overstates the real risks posed by CCRs, and (2) a limited number of damage cases 

that EPA claims show the dangers posed by these materials (see Section III.D.2 below), even 

though those damage cases are not relevant to the risks posed by these materials based on their 

inherent characteristics.

1. To Support Its Determination That Subtitle C Applies, EPA’s Recent CCR Risk Assessment 

Relies On Overly Conservative Assumptions That Are Plainly Inconsistent With Prior 

Assessments

EPA justifies its proposal to regulate CCRs under Subtitle C based in large part on the results of 

its 2003 risk assessment, which it alleges supports a determination that these materials should be 

subject to the hazardous waste generation, storage and disposal requirements of Subtitle C. 

EPA’s new assessment is problematic because (i) it represents a 180-degree reversal from prior 

assessments prepared by the Agency looking at CCR disposal issues, and (ii) it relies on 

unrealistic, overly conservative assumptions and modeling to support its risk conclusions (i.e. 

scenarios that are atypical and infrequent, to the extent that they would ever arise in the real 

world). As such, the administrative record developed by EPA does not support its proposal to 

regulate CCRs under Subtitle C.

a. Prior CCR Assessments

In October, 1980, Congress amended RCRA, adding a provision, known as the Bevill 

Amendment, to temporarily exclude large volume wastes from fossil fuel combustion from 

regulation under Subtitle C unless/until EPA conducted a study that considered the following 

eight factors as a prerequisite to taking any such regulatory action:[Footnote 62: See Section 

III.A above for a more complete discussion of the legal implications of the Bevill amendment.]

1. Sources and volumes of such materials generated per year;

2. Present disposal and utilization practices;

3. Potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

4. Documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proven;

5. Alternatives to current disposal methods;

6. Costs of such alternatives;

7. Impact of those alternatives on the use of coal and other natural resources; and

8. Current and potential utilization of such materials.

Congress gave EPA six months to complete the study required by the Bevill Amendment. EPA 

issued an initial temporary exclusion, pending a report to Congress that was eventually issued in 

1988. No further action was taken until a lawsuit was filed to compel the Agency to make a 

formal regulatory determination. EPA entered into a consent decree with all parties to that 

litigation that provided a schedule for making regulatory determinations on two separate 

categories of wastes. EPA would first make a determination regarding fly ash, bottom ash, boiler 

slag, and FGD wastes, by August 2, 1993. EPA agreed to make a determination on all other 

wastes under the Bevill Amendment by April 1, 1998, although that deadline was subsequently 

extended [Footnote 63: EPA presents the full chronology of its prior regulatory actions with 
141

respect to CCRs in Appenix A of its Regulatory Risk Assessment, including a complete history 

of the various determinations. See EPA, Appendix for Regulatory Impact Analysis, 4-6 (April 

30, 2010).].

In 1993, EPA issued its first official regulatory determination that regulation of CCR materials 

under Subtitle C was not appropriate for fly ash, bottom ash, FGD wastes, and boiler slag 

[Footnote 64: 58 Fed. Reg. 42,466-67.]. EPA based this determination on its conclusion that (i) 

the materials posed low risks, (ii) there were sufficient state and federal regulatory 

controls,[Footnote 65: EPA reviewed regulations in the 17 states that represented approximately 

70 percent of coal ash in the U.S., and found that all but one required operating permits, 12 had 

mandatory liner and groundwater monitoring requirements, and three states had authority to 

impose liner requirements on a case-by-case basis. 14 regulated CCRs as solid wastes, two had 

requirements based on waste characteristics, and one exempted CCRs completely. As a result, 

EPA found that “State regulatory programs are generally adequate.” Id. At 42,476.] and (iii) the 

risks from the wastes were dictated by site-specific characteristics at disposal sites, such as 

groundwater flow and soil properties, rather than uniform characteristics inherent to the residuals 

themselves, such that regulating CCR materials as hazardous wastes was neither scientifically 

sound nor justified as a matter of policy [Footnote 66: “Since [CCR] sites vary widely in terms 

of topographical, geological, climatological, and hydrological characteristics (e.g., depth to 

groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes' 

potential to leach into the groundwater and travel to exposure points is linked to such factors, it is 

more appropriate for individual States to have the flexibility necessary to tailor specific controls 

to the site or region specific risks posed by these wastes.” Id. at 42,477]. The Agency noted that 

although there were a few groundwater samples which exceeded drinking water standards, they 

would not likely lead to any human exposures at that level due to dispersion in the groundwater 

and a lack of drinking water sources downstream of coal plants or disposal sites [Footnote 67: Id. 

at 42,475.]. In addition, the agency estimated that the cost to industry of listing under subtitle C 

could increase from $800 million annually under the existing disposal framework to between 

$3.7 and $5 billion [Footnote 68: Id. at 42,467-68.]. 

At the time, the Agency did not take a position on regulation under Subtitle D, but when it was 

presented with the suggestion that CCR landfills and impoundments be regulated similarly to 

MSW landfills (40 CFR part 258), EPA responded that:

[w]hile the Agency believes that design and operating requirements similar to part 258 may be 

appropriate for some...[CCR] waste management units, the risks posed by...[CCR] waste 

management are site-specific. Although groundwater contamination has occurred at certain coal 

combustion waste sites, contamination has been due to a limited number of constituents, which 

are likely to attenuate and dilute to safe levels before reaching an exposure point. This is in 

contrast to municipal solid waste landfills that are subject to 40 CFR part 258. The leachate at 

these sites often contains elevated levels of a wide range of toxic pollutants, and numerous 

damages have been observed. Therefore, the Agency believes that the level of protection 

provided by the part 258 criteria may not need to be universally applied to all...[CCR] waste 

management units. It is therefore appropriate to allow the States to retain the flexibility to tailor 

requirements to site-specific or regional factors rather than establish broad Federal minimum 

requirements. It should be noted that many States have adopted regulatory requirements 

for...[CCR] waste management units comparable to the part 258 criteria. EPA will consider 

these wastes as part of the Agency’s ongoing assessment of industrial non-hazardous wastes 

under RCRA Subtitle D [Footnote 69: Id. at 42481 (emphasis added).].
142

EPA published its next risk assessment, for combined wastes and other non-utility fossil fuel 

wastes, in 1998 in draft form. Based on the analysis in the 1998 draft risk assessment, EPA 

issued a report to Congress recommending against Subtitle C regulation, with the possible 

exception of the agricultural use of CCRs [Footnote 70: EPA, Report to Congress Wastes from 

the Combustion of Fossil Fuels Volume 1 – Executive Summary, 3- 5 (March 1999).]. In the 

1998 draft risk assessment and the associated report to Congress, EPA concluded that risks were

below the toxic and cancer risk levels of concern, with only arsenic generating cancer risks in 

EPA’s Monte Carlo model of greater than 1x10-6, ranging from 4x10-5 to 2x10-5 [Footnote 71: 

Id. at 3-2 - 3-3 (March 1999).]. However, EPA received numerous technical comments on the 

groundwater transport model, EPACMTP, that it was unable to address in time to meet the 

consent decree timeline for releasing its final regulatory determination on the remaining waste 

categories. As a result EPA did not base its 2000 determination on the results of the EPACMTP 

model, for fear that it was inaccurate.

EPA concluded that its 1998 leachate modeling (based on the EPACMTP model) overestimated 

generation and concentrations over time, in part because it was based on a small sample size that 

gave an overly strong weight to a single facility’s worst-case observation, and thus may not have 

accurately reflected actual leachate conditions [Footnote 72: EPA, Ground-Water Pathway 

Human Health Risk Assessment, p. 8-2 1998 (Revised Draft Final).]. Therefore, EPA instead 

relied on surveys of hazardous constituents in CCRs, noting that samples of CCR wastes rarely 

exceeded hazardous waste characteristic levels:

Fossil fuel wastes infrequently exceed the hazardous waste characteristic. For comanaged 

wastes, 2% (1 of 51 samples) exceeded the characteristic level. For individual wastes streams, 

0% of the coal bottom ash, 2% of the coal fly ash, 3% of the coal flue gas desulfurization, and 

7% of the coal boiler slag samples that were tested exceeded the characteristic level [Footnote 

73: 65 Fed. Reg. at 32,222.].

At the time, the only concern expressed by the Agency related to the potential for the leaching of 

arsenic out of the CCR materials. However, in 1993 EPA found that improvements in state and 

federal regulation would likely address the outstanding concerns:

Nonetheless, given most of the states’ current regulatory capabilities and the evidence that basic 

controls are increasingly being put in place by the states and facilities (see RCRA section 

8002(n), which directs EPA to consider actions of state and other federal agencies with a view to 

avoiding duplication of effort), EPA believes that subtitle D controls will provide sufficient 

clarity and incentive for states to close the remaining gaps in coverage, and for facilities to 

ensure that their wastes are managed properly [Footnote 74: Id. at 32,217.]. 

In addition to the preceding considerations, EPA based its 2000 decision, in part, on a desire to 

not reduce the beneficial reuse of CCRs, recognizing that a Subtitle C listing had the potential to 

negatively impact such use:

Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, 

given the central concern under the statute for protection of human health and the environment. 

However, given our conclusion that the subtitle D approach here should be fully effective in 

protecting human health and the environment, and given the large and salutary role that 

beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision 

today that [S]ubtitle C regulation is unwarranted in light of our decision to pursue a [S]ubtitle D 

approach [Footnote 75: Id.].

In sum, EPA’s prior evaluations of the hazards posed by CCR materials clearly demonstrate that 

Agency had concluded that these materials are not “typically or frequently” hazardous. Yet, EPA 
143

dismisses these prior determinations here without sufficient justification why these materials 

suddenly present a hazard to human health or the environment

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08247-9

Organization1:Tucson Electric Power Company

Commenter1: Erik Bakken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

EPA MAY NOT REVERSE ITS FINAL REGULATORY DETERMINATIONS THAT 

CCRs DO NOT WARRANT REGULATION UNDER RCRA SUBTITLE C 

EPA determined on four separate occasions, most recently in 2000, that the regulation of CCRs 

as a hazardous waste is not warranted. EPA also determined that regulation as non-hazardous 

waste (RCRA, Subtitle D) is the appropriate option for ensuring the safe management of CCRs 

and is fully effective in protecting human health and the environment. In the May 2000 

Regulatory Determination EPA concluded that CCRs waste rarely exhibit a hazardous waste 

characteristic. EPA?s 2000 final Regulatory Determination for CCRs completed the Bevill 

determination process pursuant to the prescribed statutory procedures. TEP agrees with EPA?s 

May 2000 determination that CCRs should be regulated as non-hazardous waste under Subtitle D 

of RCRA. TEP disagrees with EPA?s proposed Subtitle C option which attempts to reverse 

EPA?s previously completed determinations that were made pursuant to the statutory prescribed 

procedures. TEP requests that EPA stand by its May 2000 Regulatory Determination for CCRs, 

by promulgating federal non-hazardous rules for the disposal of CCRs. The statute does not 

authorize EPA to reverse these final Regulatory Determinations. The Subtitle C option attempts a 

reversal of these final Regulatory Determinations which does not comply with the Bevill 

Amendments statutorily-prescribed decision-making process. TEP requests that the current EPA 

administration adhere to the final Regulatory determinations of previous EPA administrations 

which followed the direction of Congress.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 
144

Comment Number: EPA-HQ-RCRA-2009-0640-08255-2

Organization1:LG&E and KU Energy LLC

Commenter1: Robert J. Ehrler on behalf of Dorothy E. O'Brien

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

III.Regulation of Coal Combustion Residuals under Subtitle C of RCRA is Improper and 

Unwarranted. 

The Bevill Amendment to RCRA provides that CCRs shall not be regulated under Subtitle C 

until and unless EPA has submitted a comprehensive study to Congress assessing the 

environmental risks, if any, posed by CCRs and made a final regulatory determination in favor of 

Subtitle C regulation. 42 U.S.C. Section 6921(b)(3). The process specified in the statute reflects 

Congressional intent that EPA should avoid any regulatory actions that unduly impede the use of 

coal. This concern is of critical importance for a state like Kentucky which relies on coal-fired 

generation for more than 92% of its electricity. EPA undertook the requisite studies and 

submitted reports to Congress in 1988 (for certain large volume CCRs) and 1999 (for the 

remaining CCRs). In both reports, EPA concluded that Subtitle C regulation of CCRs was 

inappropriate; EPA issued corresponding regulatory determinations in 1993 and 2000 holding 

that Subtitle C regulation of CCRs was unwarranted. In the present situation, EPA is proposing a 

Subtitle C regulatory option that would reverse EPA’s previous final regulatory determinations, 

despite the lack of any authority under RCRA for regulatory “do-overs,” and without following 

the statutorily prescribed process for making a regulatory determination. Not only has EPA failed 

to provide a reasoned explanation for reversing its previous regulatory determinations that 

Subtitle C regulation was inappropriate, but it also concedes that the environmental protection 

measures under the Subtitle C and Subtitle D options outlined in the Proposed Rule are virtually 

identical, thus contravening the statutory directive that EPA not unnecessarily impede the use of 

coal through Subtitle C regulation. EPA’s rationale for the Subtitle C option rests on the flawed 

logic that the approach will increase beneficial reuse (see specific comments in section V below) 

and the cost estimates in EPA’s Regulatory Impact Analysis are flawed on similar grounds. In 

considering the listing of CCRs as a hazardous waste, EPA has used flawed methodologies that 

do not reflect the low risks posed by CCRs. See Kentucky Comments, pp. 2-3. The Electric 

Power Research Institute and others have conducted extensive research that demonstrates the 

non-hazardous nature of CCRs. EPA’s recent conclusions are directly contradicted by the 

findings in its previous reports to Congress and regulatory determinations. In summary, the 

Subtitle C option proposed by EPA must be rejected as arbitrary and capricious, inconsistent 

with the authority granted to EPA under RCRA, and in violation of applicable law.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 
145

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-4

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 3.1.2 2.1.1

Comment Excerpt Text:

EPA's 1993 And 2000 Bevill Determinations Regarding CCRs 

On August 9, 1993 , EPA published is Regulatory Determination for the first category of CCR 

wastes (58 Fed. Reg. 42,466) and determined that regulation under Subtitle C ofRCRA for these 

wastes was not wal1'anted. On May 22, 2000, EPA published its Regulatory Detelmination for 

the remaining CCRs and concluded that the remaining wastes were largely identical to the highvolume monofilled wastes, which remained exempt based on the 1993 Regulatory 

Detelmination. The high volume wastes simply dominate the waste characteristics even when comanaged with other wastes, and thus, the May 2000 Regulatory Determination addressed not 

only the remaining wastes, but effectively reopened the decision on CCRs that went to monofills. 

While some risks were aclmowledged to be associated with these wastes, EPA fmiher concluded 

that significant improvements were being made in waste management practices due to increasing 

state oversight. On this basis, EPA chose to retain the Bevill exemption for CCRs, and the wastes 

would be regulated under Subtitle D of RCRA as solid wastes. 

The Bevill Amendment to the Clean Air Act established a one-time special process for making 

Bevill regulatory determinations for large volume, low toxicity wastes such as CCRs, and the 

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

statutory-mandated Bevill process must be followed before a Bevill exemption determination can 

be reversed. To reverse a Bevill exemption determination for a waste EPA must: 1) study the 

waste pursuant to eight study factors, 2) submit a repOli to Congress, 3) conduct public hearings 

and provide an opportunity for comment on the report, and 4) if EPA determines that a change in 

the Bevill exemption for the waste is warranted, then it must engage in a notice and comment 

regulatory procedure to promulgate the regulations. EPA has not implemented this procedure 

since the 1993 and 2000 determinations. Therefore, at this time EPA cannot legally reverse its 

1993 and 2000 Regulatory Determinations for CCRs and pursue a Subtitle C hazardous waste 

designation for CCRs. For these reasons Cliffs urges EPA to abandon its consideration of a 

Subtitle C determination for CCRs in this rulemaking. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 
146

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-6

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.1.1 10.2.1

Comment Excerpt Text:

Cliffs Supports EPA's Decision Not To Reverse The Regulatory Determination For Beneficial 

Uses Of CCRs 

From the very beginning of the proposed rule, EPA states that it is "not proposing to change the 

May 2000 Regulatory Determination for beneficially used CCRs" (75 Fed. Reg. at 35,128 and 75 

Fed. Reg. at 35,160). NMA strongly supp0l1s the agency's decision. Currently, more than 50 

million tons of CCRs (nearly 45 percent) are beneficially used. As EPA is keenly aware, the 

beneficial use of CCRs provides tremendous societal and environmental benefits. To name a 

few, these benefits include: reducing the amount of green space disturbed for the mining of 

virgin materials, eliminating the need for larger disposal sites, and creating sustainable products 

in a way that decreases the emission of greenhouse gases. 

EPA's May 2000 Regulatory Determination recognized the following beneficial uses: 

Beneficial purposes include waste stabilization, beneficial construction applications (e.g., 

cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wall board, 

insulation, roofing materials), agricultural applications (e.g., as a substitute for lime) and other 

applications (absorbents, filter media, paints, plastics and metals manufacture, snow and ice 

control, waste stabilization). 

65 Fed. Reg. at 32,229. EPA provides no reasoned justification for reversing course and 

regulating any of the beneficial uses listed above. EPA should maintain its position in the final 

rule and not regulate these beneficial uses of CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08418-3

Organization1:

Commenter1:Annely Noble

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:
147

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

The EPA declared coal combustion residuals to be non-hazardous in both 1993 and again in 

2000; why is EPA revisiting this decision in 2010 and considering reclassifying CCRs as 

hazardous waste? This does not make sense!

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-08826-6

Organization1:Duquesne University School of Law

Commenter1: Kirk W. Junker 

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The timeframe for consideration of the hazardous properties of coal fly ash in Europe is also 

roughly parallel to the US. In March of 1999, the EPA examined the classification of fly ash 

waste, as a coal combustion waste, determining that it does not necessitate regulation as a 

hazardous waste under Subtitle C of RCRA because of adequate state regulation; therefore 

limiting RCRA regulation to that of Subtitle D substances. [Footnote 5: Fossil Fuel Combustion 

Waste, US EPA, http://www.epa.gov/osw/nonhaz/industrial/special/fossil/]. Just one year later, 

the European Commission also classified coal fly-ash as non-hazardous in the European 

Commission Decision of May 3, 2000. [Footnote 6: 2000/532/EC]. However—and this is a big 

however—European Commission Regulation 1013/2006 [footnote 7: Passed by the European 

Parliament and European Council, January 14, 2006] explicitly prohibits the shipment of coalfired powerplant fly ash in compliance with the Basel Convention’s Article 36. And this brings 

me to my third point. 

If the European Commission classified fly-ash as non-hazardous in 2000, why does it prohibit 

shipping it? Because as we all know from our own federal regulations, the way in which a 

material is handled may also determine that it is hazardous. [Footnote 8: 40 CFR 261.10]. Just as 

the European Union reconsidered its earlier decision from the year 2000, we now have the 

opportunity to reconsider the EPA’s March 1999 examination and determination that neither 

large-volume wastes nor remaining fossil fuel combustion wastes, such as fly ash, warranted 

hazardous waste designation under Subtitle C of RCRA. In 1999, existing state regulatory were 

thought to be sufficient. In 1999, existing state controls revealed that the majority of states had 

the authority to impose physical controls and monitoring requirements on coal combustion waste 

landfills and impoundments on at least a case by case basis. [Footnote 9: Technical Background 

Document for the Report to Congress on Remaining Wastes from Fossil Fuel 

combustion: Existing State Regulatory Controls, March 15, 1999, US EPA, 
148

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ffc2_396.pdf]. However, pursuant to the 

report, in 1999, 44 of 50 states exempted coal combustion wastes from hazardous waste 

regulations, leaving the majority of regulation of this material to state-led RCRA Subtitle D 

waste programs. [Footnote 10: Id.]. Political times have changed and it is time to use available 

science and legal tools to take notice of that. 

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-08840-11

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

IV. EPGA Endorses the Subtitle D Option

As discussed previously, EPGA believes that regulation of CCRs under RCRA Subtitle C is 

inappropriate and inconsistent with EPA's previous findings that CCRs do not warrant regulation 

as hazardous wastes. We believe that the second option provided in this proposed rulemaking, 

regulation of CCRs destined for disposal under RCRA Subtitle D, is the more appropriate 

regulatory method, and is consistent with EPA's rulemaking record. EPGA does have some 

concerns with the proposed Subtitle D option, which we will explain in detail below.

A. Appropriateness of Subtitle D

EPA was directed by Congress under the Solid Waste Disposal Act to conduct a comprehensive 

study of CCRs to determine the environmental risks, if any, that these materials posed, and report 

back with their findings. Until such time that the study was complete, these materials were 

subject to regulation under applicable federal and state disposal provisions, in lieu of RCRA 

Subtitle C.

EPA soon realized that the magnitude of such a study was so large that it needed to divide the 

study into two phases in order to meet the schedule mandated by Congress. The initial phase 

addressed the four large-volume CCRs generated by coal-fired electric generators, which 

included fly ash, bottom ash, boiler slag and flue gas emission control wastes. The second phase 

then covered the remaining CCRs generated by electric utilities and non-utilities. This study 

phase would also include the four large-volume CCRs when co-disposed with these other 

remaining CCRs.
149

On March 8,1988, EPA reported to Congress, under the first phase of the study, that "EPA does 

not intend to regulate under [RCRA] Subtitle C fly ash, bottom ash, boiler slag, and flue gas 

desulfurization wastes." 1988 Report to Congress at ES-6 (emphasis added).

On August 9, 1993, EPA published its initial final Regulatory Determination for CCRs, an 

additional mandated requirement from Congress. EPA concluded that RCRA Subtitle C 

regulation of the four large-volume CCRs - fly ash, bottom ash, boiler slag, and flue gas 

desulfurization waste - was not warranted. 58 Fed. Reg. 42466.

In March of 1999, EPA provided its Report to Congress on the remaining wastes studied under 

the second phase of the Congressionally mandated study. In this second report, EPA reiterated its 

earlier findings "that [RCRA] Subtitle C is inappropriate to address any problems associated with 

disposal of these wastes and that the continued use of site and region specific approaches by the 

states is more appropriate for addressing the limited human health and environmental risks that 

may be associated with disposal of these wastes." 1999 Report to Congress at 3-5 (emphasis 

added).

Finally, on May 22, 2000, EPA completed its Congressionally-mandated statutorial requirements 

with its final Regulatory Determination for all remaining fossil fuel combustion wastes, 

including CCRs managed with certain low-volume wastes. 65 Fed. Reg. 32214. In this final 

Determination, EPA again concluded, consistent with its previous findings and with its second 

Report to Congress, that CCRs and other fossil fuel combustion wastes did not warrant 

regulation under RCRA's Subtitle C hazardous waste program. EPA further concluded that 

development of national non-hazardous waste regulations under RCRA Subtitle D is the 

appropriate disposal method for CCRs disposed in landfills and surface impoundments. Id.

Thus, it is obvious to EPGA that the second option provided in this current proposed rulemaking, 

regulation of CCRs destined for disposal under RCRA Subtitle D, is consistent with the 

rulemaking record, and is the only logical and appropriate regulatory method

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-08844-14

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

IV. NMA'S COMMENTS ON EPA'S PROPOSED APPROACH TO BENEFICIAL USES OF 

CCRS
150

A. NMA Supports EPA's Decision Not To Reverse the Regulatory Determination for Beneficial 

Uses of CCRs

From the very beginning of the proposed rule, EPA states that it is "not proposing to change the 

May 2000 Regulatory Determination for beneficially used CCRs." 75 Fed. Reg. at 35,128; See 

also 75 Fed. Reg. at 35,160. NMA strongly supports the agency's decision. Currently, more than 

50 million tons of CCRs (nearly 45 percent) are beneficially used. [FN 15: NMA was 

disappointed to read that EPA does not consider placement of fill in mines to be a beneficial use. 

See 75 Fed. Reg. at 35,212 n.155. According to EPA, the definition of beneficial use touted by 

the ACAA "does not align with that used by EPA in this rulemaking." ACAA includes mine 

applications as a beneficial use. The agency, however "classifies it as a separate category of use." 

NMA disagrees with EPA's position. In its Regulatory Determination, EPA even acknowledges 

that "when done properly, minefilling can lead to substantial environmental benefits." 65 Fed. 

Reg. at 32,217. EPA further recognizes that "reuse when performed properly, is by far the 

environmentally preferable destination for these wastes, including when minefilled." [d. EPA's 

statements to the contrary in this proposed rule are unfounded and misplaced, particularly since 

this rulemaking is not intended to address the use of CCRs at coal mining operations.] As EPA is 

keenly aware, the beneficial use of CCRs provides tremendous societal and environmental

benefits. To name a few, these benefits include: reducing the amount of green space disturbed for 

the mining of virgin materials, eliminating the need for larger disposal sites, and creating 

sustainable products in a way that decreases the emission of greenhouse gases.

EPA's May 2000 Regulatory Determination recognized the following beneficial uses:

Beneficial purposes include waste stabilization, beneficial construction applications (e.g., 

cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wall board, 

insulation, roofing materials), agricultural applications (e.g., as a substitute for lime) and other 

applications (absorbents, filter media, paints, plastics and metals manufacture, snow and ice 

control, waste stabilization).

65 Fed. Reg. at 32,229. NMA is aware of one non-coal mining operation that mixes CCRs into 

concrete and uses the concrete in mine workings as structural fill. This use is a beneficial use as 

described in the Regulatory Determination. EPA provides no reasoned justification for reversing 

course and regulating this use or any of the beneficial uses listed above in the Regulatory 

Determination. EPA should maintain its position in the final rule and not regulate these 

beneficial uses of CCRs

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08844-9

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association

Classification: Substantive
151

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 2.1.6

Comment Excerpt Text:

II. EPA'S REEXAMINATION OF THE BEVILL STATUS OF WASTES FROM THE 

COMBUSTION OF FOSSIL FUELS

A. EPA Lacks the Authority to Reverse its 1993 and 2000 Bevill Regulatory Determinations 

Regarding CCRs

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so-called 

Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory 

Determinations for CCRs. It is clear from RCRA, relevant case law, and EPA's prior positions in 

Bevill cases that EPA lacks the authority to reverse its August 1993 and May 2000 Bevill 

Regulatory Determinations regarding CCRs.

1. The Bevill Amendment Establishes a One-Time Special Process For Making Bevill 

Regulatory Determinations

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.C. §§ 6921-6931, generally 

established a "cradle to grave" management scheme governing the generation, transportation, 

treatment, storage and disposal of the hazardous wastes that would be subject to this stringent 

RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA 

Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil 

fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. 

Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer 

regulatory requirements because they were generated in "very large volumes," "posed relatively 

low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous 

waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final 

hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final 

rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as 

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, 

onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations 

and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 

6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill 

Amendment established a special process which EPA was required to follow before CCRs and 

the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See 

also, Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) 

("Indeed, our reading of the statute and legislative history strongly suggests that Congress 

designed the Bevill Amendment to break with the previous approach to regulation of hazardous 
152

industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle 

C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 

6921(b)(3)(A). Congress directed EPA to conduct a "detailed and comprehensive study" on the 

adverse effects on human health and the environment of CCRs and other special wastes. 42 

U.S.c. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how to 

determine if wastes were hazardous and subject to Subtitle C under the regulations that were to 

become effective on November 19, 1980, Congress expressly directed that the Bevill study 

include an analysis of:

1) the source and volumes of CCRs generated per year;

2) present disposal and utilization practices;

3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

4) documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proved;

5) alternatives to current disposal methods;

6) the costs of such alternatives;

7) the impact of those alternatives on the use of coal and other material resources; and

8) the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include 

"appropriate findings," not later than 24 months after October 21, 1980. [d. The Bevill Report 

was to be submitted to the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives. [d.

Fourth, the Bevill Amendment further stipulated that within six months after the Report to 

Congress, EPA, after public hearings and the opportunity for comment, had to determine whether 

to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were 

unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were 

warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle 

C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 

1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on 

the Report to Congress] will be a determination of whether regulation is warranted in the future, 

not regulations themselves.")

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980, for 
153

publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No. 

91-2435 (D. D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel 

combustion wastes into two categories, and agreed to follow the Bevill process separately for the 

two categories. EPA had actually published its First Report to Congress on fossil fuel 

combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 

1988). On August 9, 1993, EPA issued a regulatory determination that regulation of four large 

volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, 

and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 

Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of comanagement, ash derived from co-burning of coal from non-hazardous solid waste, ash derived 

from clean coal combustion, and combustion residues from burning oil and natural gas. EPA

submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 

28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg. 

32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination that 

hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes 

"[was] not warranted." 65 Fed. Reg. at 32,215. EPA reserved the right to revise this 

determination. See Id. at 32,215 & 32,218.

An analysis of the Bevill Amendment reveals that the above-described special Bevill process 

established by Congress provided for a one-time evaluation of CCRs and the other special wastes 

that cannot be subsequently reversed. First, the Bevill Amendment by its terms calls for a 

"study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory 

context, means that Congress deliberately established a one-time study and one-time Report to 

Congress obligation. Similarly, Congress called for a one-time regulatory determination when it 

stated that "not later than six months after the date of submission of the applicable study" EPA 

should "either determine to promulgate regulations ... or determine that such regulations are 

unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it clear it was establishing a one-time study, report and regulatory 

determination obligation when it required that the report and study be completed by a date 

certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a 

temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach 

consistent with a one-time study, report, and regulatory determination. 42 U.S.C. § 

6921(b)(3)(A). If Congress had intended to extend the Bevill process thirty years beyond the 

1980 date Congress established for completion of the Bevill study and report, Congress would 

have done so explicitly. That Congress did not do so, further confirms that it intended that the 

Bevill process consist of a one-time report, study, and regulatory determination for CCRs.

Accordingly, with the issuance of the 2000 Regulatory Determination, the Bevill process for 

fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the 

Bevill Amendment established a one-time study, report, and regulatory determination for CCRs. 

Accordingly, EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations. 

Any attempt by EPA to do so in the final rule would be unlawful
154

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time.

Comment Number: EPA-HQ-RCRA-2009-0640-08855-1

Organization1:Colstrip Energy Limited Partnership (CELP)

Commenter1: R. Lee Roberts

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

EPA Once Recognized One Size Does Not Fit All Landfills 

EPA's two proposed rule-makings (both RCRA subtitle Cand subtitle D) each appear to try to 

impose one uniform set of requirements upon all entities which would be subject to those rules. 

Such an approach in CELP's opinion does not reflect reality. Aside from the obvious difference 

between sludge impoundments and dry ash landfills, there are material and significant 

differences between ash from Pulverized Coal Units ("PCUs") and ash from Fluidized Bed 

Combustors ("FBCs"). As EPA in its 1993 Final Regulatory Determination on Four LargeVolume Wastes from the Combustion of Coal by Electric Utility Power Plants (58 FR No. 151) 

observed at page 42,469: 

"Finally, for the purposes of this action, large-volume wastes from coal-fired electric utilities do 

not include wastes generated from fluidized bed combustion (FBC) boiler units. FBC is a 

relatively new combustion technology that allows for the removal of sulfur without an end-ofpipe scrubber. The wastes generated by this technology were not studied in the RTC, and only 

limited information regarding their characteristics and management has been collected to date. 

The information that is available has not provided EPA with enough evidence to conclude that 

waste generated from FBC units is substantially similar to conventional boiler wastes. Some 

sources maintain that FBC units that burn solely coal as a fossil-fuel source generate fly ash and 

spent bed material that is substantially different from conventional boiler wastes. n5 This is 

because in FBC, coal is burned in the presence of limestone. The differences in the FBC wastes 

are defined by a presence of sulfur compounds and high amounts of residual alkalinity...."

EPA also concluded that further analysis of FBC waste was needed in order to reach conclusions 

as to the character of those wastes. 

"The information does indicate that the use of CFB technology in the electric utility industry may 

be increasing. Because of the current lack of data, the potential of the co-firing of limestone to 

have a significant effect on the characteristics of the wastes produced, and the potential for 

increased utilization of the technology, the Agency has decided to defer a decision on these 

wastes until further information from the growing number of facilities can be examined. 

Therefore, the Agency considers these wastes "remaining wastes," which are outside the scope of
155

today's regulatory determination." 

EPA in its 2000 Regulatory Determination on Wastes From the Combustion of Fossil Fuels; 

Final Rule (FR 65, p. 32,214) once again determined that regulation pursuant to subtitle CRCRA 

was not warranted for FBC wastes: 

"In today's action, we are determining that regulation of fossil fuel combustion (FFC) wastes 

under subtitle C of the Resource Conservation and Recovery Act (RCRA) is not warranted. This 

determination covers the following wastes: ***

- Coal combustion wastes generated at facilities with fluidized bed combustion technology;" 

but decided to establish national regulations under subtitle D RCRA 

"While these wastes remain exempt from subtitle C, we have further decided to establish national 

regulations under subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion 

wastes that are disposed in landfills or surface impoundments or uses to fill surface or 

underground mines...." 

EPA observed at page 32,216 that site-specific characteristics should be considered when 

determining the applicable level of regulation for a specific facility: 

"We note, however, that some waste management units may not warrant liners and/or 

groundwater monitoring, depending on site-specific characteristics." 

Unfortunately, in its current proposals EPA does not address the further analysis and study of the 

differences between PCU ash and FBC ash it once deemed appropriate as discussed above, does 

not differentiate between them, and does not recognize that site-specific characteristics can 

materially alter requirements. CELP strongly encourages the EPA to complete the analysis on the 

differences between PCU ash and FBC ash before finalizing the CCR rule. Completing this 

analysis is necessary before including FBC ash in this rule because it may pose significantly 

lower risks to the environment.

Response: This comment is addressed in Volume 3 of the Response to Comment document on 

applicability of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-9

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

The essential flaw in the Subtitle C option is that it is premised on the notion that EPA is at 

liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation under 

Subtitle C of RCRA. Because the statute does not authorize EPA to reverse its final Regulatory 
156

Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even 

assuming for purposes of argument that the statute did authorize such reversal, EPA's proposal to 

regulate CCRs under Subtitle C does not comport with the Bevill Amendment's statutorily 

prescribed decision-making process and would be arbitrary and capricious. For example, the 

Subtitle C option would adversely impact CCR beneficial use and impose unwarranted and 

excessive costs on the utility industry.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

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

of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09281-15

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

c. Regulation under Subtitle D is consistent with applicable law and the rulemaking record. 

As required under the Bevill Amendment, EPA submitted two prior reports to Congress 

addressing the appropriate regulatory regime for CCR. See 42 U.S.C. § 6982(n). These reports, 

submitted in 1988 and 1999, preceded two previous Regulatory Determinations, issued in 1993 

and 2000. Under these Regulatory Determinations, EPA concluded that regulation under Subtitle 

C of RCRA is inappropriate for CCR, and that Subtitle D can address the environmental and 

public health and safety concerns associated with CCR disposal. Exelon believes that EPA 

should implement a regulatory paradigm under Subtitle D, as that approach is consistent with the 

procedural requirements imposed by the Bevill Amendment, the prior Regulatory 

Determinations and the rulemaking record. These factors may help the Agency stave off legal 

challenges as to the implementation process for final CCR disposal rules. A brief summary of 

key findings in the Regulatory Determinations, which were preceded by supporting Reports to 

Congress, and highlights from industry studies and comments from other regulators follows. 

On August 9, 1993, EPA’s review of the proper regulatory regime for disposal of fly ash, bottom 

ash, boiler slag and flue gas emissions control waste from the combustion of coal by electric 

utilities concluded with the determination that “Subtitle C is inappropriate to address the 

problems associated with these wastes and that the site or region specific state approach is 

appropriate for addressing the limited human health and environmental risks involved with the 

disposal of FFC wastes.” 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). In reaching this decision, 

EPA acknowledged that “coal combustion wastes rarely exceed RCRA characteristics for 

hazardous waste” and “[a] Subtitle C system would require coal combustion units to obtain a 

Subtitle C permit (which would unnecessarily duplicate existing state requirements) and would 
157

establish a series of waste design and operating requirements for these wastes, which would 

generally be in excess of requirements to protect human health and the environment.” Id. EPA 

did, however, indicate that it would continue to consider these wastes during its ongoing 

assessment of industrial non-hazardous wastes under Subtitle D. Id. 

When EPA issued a subsequent Regulatory Determination on May 22, 2000, addressing 

“remaining [coal combustion] wastes,” it determined that “national regulations under subtitle D 

of RCRA are warranted for coal combustion wastes when they are disposed in landfills or 

surface impoundments.” 65 Fed. Reg. 32214 (May 22, 2000). EPA also concluded that a Subtitle 

D approach “should be fully protective of human health and the environment.” 65 Fed. Reg. at 

32233. Moreover, the record indicated that “the structure and the sanctions associated with a 

Subtitle D approach” were sufficient compliance incentives. Id. at 32217. EPA was also 

concerned about regulating CCR disposal in a manner that could adversely impact the beneficial 

use of CCR, and acknowledged that concern was a factor “supporting our decision today that 

subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach.” 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09358-2

Organization1:Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

2. The rulemaking record supports continued management of CCRs as non-hazardous waste 

under RCRA Subtitle D as reflected in the two Final Reports to Congress prepared by EPA per 

direction from the Bevill Amendment to RCRA and the subsequent two Regulatory 

Determinations issued by EPA. For approximately the last 30 years, EPA has consistently found 

the Subtitle D approach, along with state involvement, to be the appropriate regulatory course for 

CCRs. EPA has not demonstrated that regulation outside of this regulatory framework is 

appropriate. In fact, EPA indicates by its own actions that it supports a Subtitle D approach for 

the Kingston, Tennessee ash cleanup effort. As part of the approved cleanup plan, ash is being 

disposed as a non-hazardous waste at a Subtitle D landfill.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
158

Comment Number: EPA-HQ-RCRA-2009-0640-09358-8

Organization1:Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

WPL strongly opposes regulation of CCR under RCRA Subtitle C.

1. EPA has not demonstrated that regulation under RCRA Subtitle C is required for protection of 

the environment and human health. Following the passage of the Bevill Amendment to RCRA, 

EPA initiated studies of CCRs for more than 20 years which resulted in EPA Regulatory 

Determinations issued in 1993 and 2000. Both determinations reflected findings that CCRs did 

not warrant regulation under RCRA Subtitle C. No additional determinations have been issued 

by EPA; hence, the proposal option to regulate CCRs under RCRA Subtitle C is inconsistent 

with EPA's own determinations.

Because coal is a national primary source of energy, Congress made clear in the Bevill 

Amendment to RCRA of their intent to be consulted in any EPA actions for CCR regulation, as 

well as directing that input from other federal agencies, states, and the general public should be 

sought. The EPA Subtitle C option reflects total disregard of the nearly unanimous views of 

federal and state agencies that Subtitle C regulation is not warranted for CCRs. Included in this 

list of agencies is the WDNR which testified at the EPA public hearing in Chicago on this 

rulemaking. The WDNR CCR management program is nationally recognized and currently 

includes many of the provisions proposed under the RCRA Subtitle D option.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-7

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Should Embrace its 2000 Determination that CCRs Should Be Regulated as NonHazardous Waste
159

AF&PA strongly supports the decision reached by the Clinton Administration in 2000 that coal 

combustion residuals should be regulated under Subtitle D – the nonhazardous waste provisions 

– of RCRA. We believe that EPA should continue down this path. Had the Agency completed 

the rules it said it would, appropriate management standards, engineering design, and integrity 

evaluation would have been in place. TVA would have had to change its CCR management --

thus probably avoiding the 2008 catastrophic failure of its surface impoundment that prompted 

this rulemaking.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-8

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

Our evaluation of the additional information developed by EPA subsequent to the 2000 

determination is that the new data do not support the need for applying the onerous hazardous 

waste regulations to coal combustion byproducts. The damage cases discussed in this proposal 

do not raise questions about the movement of CCRs – merely the proper disposal. As such, 

CCRs do not warrant the cradle-to-grave approach that is embodied in the hazardous waste 

program.

EPA admits in its discussion of the Subtitle D rule that requirements proposed under Part 257 

will be equivalent in protection to those under Part 264. EPA notes (see 74 Fed. Reg. at 35793) 

“Several of the provisions EPA is proposing under RCRA subtitle D either correspond to the

provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after the existing 

subtitle C requirements.” EPA will achieve basically the same level of protection under the 

Subtitle D program as it will under the Subtitle C program – yet without the impossibly onerous 

program that is inappropriate for CCRs.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09426-1

Organization1:Wisconsin Public Service

Commenter1: Connie K. Lawniczak

Commenter Type: Electric Utility Company
160

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

The Bevill Amendment to RCRA, §3001(b)(3)(A)(i-iii), is the controlling legal framework by 

which each of the regulatory options set forth in the current proposal must be evaluated. The 

Bevill Amendment establishes the statutory process by which Congress directed EPA to make a 

determination regarding whether CCRs warrant regulation under RCRA’s Subtitle C hazardous 

waste program. Following years of study, EPA completed the statutorily-mandated Bevill 

determination process for CCRs on May 22, 2000, concluding, based on two earlier Reports to 

Congress, that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste 

regulations. See 65 Fed. Reg. 32214 (May 22, 2000). Instead, EPA determined that regulation of 

CCRs as non-hazardous waste under Subtitle D of RCRA would be fully effective in protecting 

human health and the environment.

The Subtitle C option would constitute a reversal of EPA’s final 2000 Regulatory Determination 

that CCRs do not warrant hazardous waste regulation and would be in direct contravention of 

RCRA’s plain language establishing an unambiguous statutory process by which EPA can 

determine whether and how to regulate CCRs under RCRA. Having completed the Bevill 

determination process for CCRs in 2000 pursuant to the statutorily prescribed procedures, EPA is 

not at liberty to undo that process. Even assuming that the statute did allow EPA to make a new 

determination more than ten years after completing the Bevill process, EPA would at a minimum 

be obligated to adhere to the statutory procedures that Congress prescribed for making the 

original regulatory determination, including providing a Report to Congress setting forth its 

recommendation. EPA has ignored these procedures in the Subtitle C proposal.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-09530-9

Organization1:PSEG Power LLC and Public Service Electric and Gas

Commenter1:Eric B. Svenson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

X. The Subtitle D Option is Consistent with the Rulemaking 

The continuance of a Subtitle D regulatory program is consistent with the two EPA Reports to 
161

Congress, and the two final Regulatory Determinations EPA has issued pursuant to the Bevill 

Amendment, which determined CCRs do not warrant hazardous waste regulation under RCRA 

Subtitle C. 

Over the past 20 years EPA has consistently determined that a Subtitle D approach is the 

appropriate regulatory course for CCRs. In its CCR Regulatory Determination in 1993 and again 

in 2000, EPA concluded that the Subtitle D approach is most appropriate. EPA reaffirmed the 

appropriateness of Subtitle D option in the 2000 CCR Regulatory Determination, concluding that 

“Subtitle D regulations are the most appropriate mechanism......" [65 Fed. Reg. 32221] 

Furthermore, new production CCR’s rarely exhibit a hazardous waste characteristic, and as such 

do not warrant regulation as a listed hazardous waste under Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09532-2

Organization1:Natural Resource Partners LP

Commenter1:Nick Carter

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

NRP strongly opposes EPA's proposal to reverse the 1993 and 2000 Bevill regulatory 

determinations, which correctly found that CCRs should be regulated as non-hazardous wastes. 

EPA accurately concluded that Subtitle C hazardous waste designation was not appropriate for 

CCRs because it would result in unnecessarily duplicating existing state requirements and 

impose controls on CCRs "which would generally be in excess of requirements to protect human 

health and the environment." 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). A reversal of these 

determinations would unnecessarily jeopardize the beneficial re-use industry and the jobs its 

supports, in addition to causing more, not less of the CCR's to be landfilled. In EPA's 1999 

Report to Congress, it emphasized the difficulties associated with Subtitle C classification of 

CCRs:

The agency has tentatively concluded that the co-managed wastes generated at a coal-fired 

utilities, including petroleum coke combustion wastes as well as wastes from other fuels co-fired 

with coal, generally present a low inherent toxicity, are seldom characteristically hazardous, and 

generally do not present a risk to human health and the environment...lf these wastes were listed 

as hazardous, and therefore regulated under Subtitle C, coal combustion units would be required 

to obtain a Subtitle C permit, which would unnecessarily duplicate existing State requirements, 

and would establish a series of waste unit designation operating requirements for these wastes 

that would most often be in excess of requirements to protect human health and the environment. 

US EPA, Report to Congress on Wastes from the Combustion of Fossil Fuels, Vol. 2,3-73 

(1999).
162

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09712-8

Organization1:Basin Electric Power Cooperative (BEPC)

Commenter1: Claire M. Olson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

Background of the Bevill Amendment 

In 1980, Congress amended ("RCRA") with the passage of the Bevill Amendmentto ensure that 

EPAwould not inappropriately subject CCRs to hazardous waste regulation. The amendment was 

intended to avoid the excessive costs associated with Subtitle C regulation of CCRs and to 

promote their beneficial use. The Bevill Amendment addressed these concerns by suspending 

EPA's authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency 

completed a study and reported to Congress on whether such regulation was warranted. With 

completion of the study and submission of the corresponding Report to Congress, the Bevill 

Amendment required EPA to make a final regulatory determination regarding whether CCRs 

should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this 

final regulatory determination "on information developed or accumulated pursuant to [the RCRA 

8002] study, public hearings, and comment. . . ." RCRA 8002(n), 42 U.S.C . 6982(n). In short, 

EPA could only reach the decision to regulate CCRs under Subtitle Cafter following a 

statutorily- prescribed series of steps that involved congressional oversight marked by EPA's 

submission of reports to Congress that would inform the relevant congressional committees of 

jurisdiction of the Agency's preliminary recommendations. 

Implementation of the Bevill Amendment 

EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom 

ash, boiler slag, and flue gasemission control waste generally do not exhibit hazardous 

characteristics under RCRA. Accordingly, EPAstated that it did not intend to regulate those four 

large-volume coal combustion waste streams. The initial report went on to encourage the 

utilization of coal combustion wastes to the extent that such utilization could be done in an 

environmentally safe manner. Six months later, EPA reiterated in its first Regulatory 

Determination the conclusion that hazardous waste regulation was not warranted for those four 

large-volume coal combustion waste streams. 58 Fed. Reg. at 42477. The second Report to 

Congress, submitted in March 1999, again concluded that Subtitle C is inappropriate to address 

any problems associated with disposal of several other fossil fuel combustion wastes, including 

CCRs managed with certain low-volume wastes. The report also stated that "the continued use of 

site and region specific approaches by the states is more appropriate for addressing the limited 

human health and environmental risks that may be associated with disposal of these wastes." In 

May 2000, EPA completed the Bevill Amendment's statutorily-prescribed assessment and 

reporting process when it issued its final Regulatory Determination for all remaining fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes. See 65 Fed. Reg. 

at 32214. Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil 
163

fuel combustion wastes did not warrant regulation under RCRA's Subtitle C hazardous waste 

program. Instead, EPA determined that regulation as a non-hazardous solid waste under Subtitle 

D of RCRAwould be appropriate when CCRs are disposed of in landfills or surface 

impoundments. Id.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-2

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

2. The EPA does not have sufficient reason or basis to reverse its August 1993 and May 2000 

Bevill Regulatory Determinations. 

We believe the EPA has insufficient reason to reverse prior determinations concerning CCR 

management and disposal. The EPA spent significant effort in prior undertakings to review the 

CCR management issue and properly rejected the RCRA Subtitle C option. The arguments 

presented in the current proposal still do not meet the standard for regulating CCR as hazardous 

or special wastes.

The EPA states that it questions whether a natural migration to Subtitle D-like disposal practices 

has occurred as expected in the 2000 determination. If the EPA finds this is the case, the obvious 

next step would be to implement a CCR-specific Subtitle D program much like the current 

proposed option, and not make the over-reaching jump to Subtitle C management practices. 

IPSC believes that given the tremendous volume of CCR from power generation, one would 

expect to see more actual cases of CCR specific impacts to human health and the environment 

than actually found (based on EPA's assumption of CCR potential for impact). Since such is not 

the case, Subtitle C is an extreme, costly, inefficient, and legally questionable approach to bring 

CCR disposal practices to a higher standard. 

The EPA states that one indicator for the needed application of a Subtitle C program is due to 

damage cases it has "found" since the 2000 determination. Although any impact from CCR is 

troublesome, IPSC believes that the cases to which the EPA is relying for this determination are 

not in fact proven damage cases as required according to the standards under RCRA. We believe 

the EPA has improperly utilized criteria to bring cases under the umbrella of proven damage 

when in fact they are not. Given a century of CCR disposal, the low number of actual proven 

cases does not warrant a rise to extreme over regulation under Subtitle C. 

Additionally, we believe the EPA has not followed the requirements set out by Congress to 
164

reverse a Bevill Amendment determination. The 2000 determination was final, and the language 

in the law does not explore reopening a determination. Further, when the EPA does make a 

determination, it must make a report to Congress prior to any regulatory action. It appears that 

the EPA may be on legally thin ground. 

IPSC is concerned that given the previous history of EPA determinations, coupled with the 

EPA's current efforts to stretch reasoning for Subtitle C regulation of CCR, litigation against 

such action would be very likely, further delaying effective and quality management of CCR's 

where it is needed. On it's face, the proposal for a legally indefensible Subtitle C appears to be 

politically motivated, mostly driven by the current administration's extremely strong animus 

against coal. The unfortunate tragedy at Kingston only fueled this animosity. If such politics 

were proven out, it would make the EPA's regulation of CCR under Subtitle C appear arbitrary 

and capricious.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-24

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4 4.5.1

Comment Excerpt Text:

IPSC recommends that EPA: 

• Leave the 1993 and 2000 determinations in place; 

• Let the Bevill Amendment stand; 

• Adopt the D Prime option as follows: 

~ Allow existing impoundments to operate as described in the proposed rule, especially where 

States can have a protective program in place, and site-specific conditions warrant it; 

~ Where States have comparable Subtitle D programs: 

• Allow existing State landfill permitting regulations to have precedence, 

• Allow existing State groundwater protection standards to have precedence, 

• Allow existing State groundwater monitoring standards to have precedence, 

Allow existing State self reporting requirements to have precedence over company web based 

documentation; 

~ Allow States to adopt best practices under Subtitle D for site specific criteria; 
165

~ Overlay and institute Subtitle D in areas lacking at the State level. 

~ Let similar State financial assurance programs operate in place of CERCLA.

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

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

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

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

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

With regard to financial assurance programs, as stated in the proposed rule, the Agency lacks 

the authority to establish a financial assurance program under subtitle D or RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09750-6

Organization1:American Coal Council (ACC)

Commenter1: Janet Gellici

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 2.1.4

Comment Excerpt Text:

A hazardous designation is not supported by three decades of EPA study and formal 

determinations based on strong scientific research. Previous regulatory determinations in 1993 

and 2000 clearly document that CCPs should continue to be exempt from regulation as a 

hazardous waste under RCRA. In its 1993 Report to Congress, EPA stated it “encourages the 

utilization of coal combustion wastes as one method for reducing the amount of these wastes 

requiring disposal and supported voluntary efforts by industry to investigate new possibilities for 

utilizing coal combustion wastes.” 

On May 22, 2000, EPA issued a Final Regulatory Determination stating that fossil fuel 

combustion wastes “do not warrant regulation under RCRA Subtitle C,” thereby retaining the 

original Bevill exemption under RCRA. EPA further determined that there will be no regulation 

for CCRs when beneficially used and that EPA does “not wish to place any unnecessary barriers 

on beneficial use.” 

The ACC supports these prior EPA determinations.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09884-4

Organization1:Luminant
166

Commenter1: Shawn Glacken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

On two separate occasions, most recently in 2000, EPA made final regulatory determinations 

that concluded that Subtitle C of RCRA is not the appropriate regulatory regime for regulating 

CCR and that regulation as non-hazardous waste by the states is the appropriate option for 

ensuring the safe management of these materials while preserving reuse. Congress directed EPA 

to consider actions of other state and federal agencies to avoid duplication of effort. EPA 

concluded that states could ensure that the wastes are properly managed under a non-hazardous 

program

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09884-6

Organization1:Luminant

Commenter1: Shawn Glacken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Luminant strongly opposes the regulation of CCR as hazardous materials and recommends that 

EPA continue to allow states to run their own programs consistent with the Agency's final 

Regulatory Determination in 2000. EPA states today on its website that "In conducting these two 

regulatory determinations, EPA did not identify any environmental harm associated with the 

beneficial use of coal combustion products and concluded in both determinations that these 

materials did not warrant regulation as a hazardous waste. The beneficial use of coal combustion 

products can include both encapsulated and unencapsulated applications. EPA recognizes that 

unencapsulated uses of coal combustion product require proper hydrogeologic evaluation to 

ensure adequate groundwater protection. The 2000 regulatory determination recommended a 

separate review addressing the use of coal combustion wastes as fill for surface or underground 

mines, which is currently underway." 

(http://www.epa.gov/osw/conserve/rrrlimr/ccps/resources.htrn)
167

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-17

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

The rulemaking record supports regulation of CCRs under Subtitle D

It is important to emphasize that the development of Subtitle D non-hazardous waste regulations 

for CCRs is fully consistent with the rulemaking record. In fact, it is the only lawful option 

available to the Agency. The development of Subtitle D regulations would be the appropriate 

outgrowth of EPA’s two Reports to Congress and two Regulatory Determinations under the 

Bevill amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA 

Subtitle C, but rather should remain primarily the province of state regulatory programs under 

RCRA Subtitle D. Throughout its 20- year study and issuance of the required Reports to 

Congress and final CCR Regulatory Determinations, EPA has consistently found that the 

Subtitle D approach, with active state involvement, was the appropriate regulatory course for 

CCRs. In its first CCR Regulatory Determination in 1993, EPA concluded that, because “the 

potential for damage from these wastes is most often determined by site- or region-specific 

factors,” the “current State approach to regulation” under RCRA Subtitle D is most appropriate. 

EPA echoed this finding in its second Report to Congress in 1999, concluding once again “that 

[RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these 

wastes and that the continued use of site and region specific approaches by the states [under 

RCRA Subtitle D] is more appropriate for addressing the limited human health and 

environmental risks that may be associated with disposal of these wastes.”

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 Regulatory 

Determination, concluding that “the subtitle D regulations are the most appropriate mechanism 

for ensuring that [CCRs] disposed in landfills and surface impoundments are managed safely.” In 

addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that 

the decisive factors underlying its final determination that CCRs do not warrant regulation under 

RCRA’s Subtitle C hazardous waste regulations were:

• improving trends in present CCR disposal and utilization practices;

• the current and potential utilization of CCRs (i.e. beneficial use); and

• Congress’ admonition in the Bevill Amendment against duplication of efforts by other federal 
168

and state agencies.

In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to 

the record evidence as set forth in the 1999 Report to Congress that “the utility industry has 

made significant improvements in its waste management practices over recent years” and to 

similar record evidence that “state [CCR regulatory] programs have, in fact, substantially 

improved over the last 15 years or so.” EPA found that “the ability for most states to impose 

specific regulatory controls for coal combustion wastes has increased almost three-fold over the 

past 15 years.” EPA concluded that, “with the exception of relatively few states, the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these

wastes.”

This positive trend has continued, with EPA and DOE finding in their joint 2007 report of state 

CCR controls that “[t]he data and analyses documented in this report provide new information 

that appears to show improved management of CCWs in both landfills and surface 

impoundments.” Since the initiation of this rulemaking effort, the record support for the Subtitle 

D option has become even more compelling. Over the last year, the overwhelming majority of 

the states, the National Governors Association, municipal and local governments, ASTSWMO, 

the Environmental Council of the States, over two dozen state environmental protection agencies 

and state departments of transpiration, federal agencies including the Department of Energy, a 

bi-partisan group of 165 members of Congress (including the majority of the House Energy and 

Commerce Committee), 45 U.S. Senators and many other third parties have expressed their 

support for regulation of CCRs as a non-hazardous waste under RCRA Subtitle D. Given the 

breadth of federal agency, state, local and congressional support for the Subtitle D option, 

rejection of the Subtitle D option in favor of the Subtitle C approach would fly in the face of the 

Bevill amendment’s directive that any final regulatory program for CCRs take into account the 

views of other federal agencies and the states to ensure a unified decision that “avoid[s] a 

duplication of effort.” As noted above, Representative Bevill repeatedly cautioned EPA that it 

was not to make a final regulatory determination for CCRs “in a vacuum,” but rather was to 

consult and coordinate with other key agencies that have evaluated CCRs, including, the 

Departments of Energy, Interior and Agriculture, as well as other government agencies, to ensure 

a coordinated regulatory approach for CCRs consistent with the nation’s “commitment to 

develop a coherent and consistent policy toward the use of our coal and other energy resources.” 

These federal, state, municipal and local agencies have spoken and are virtually unanimous in

their support of the Subtitle D approach.

In short, given the overwhelming views by the very agencies that Congress directed EPA to 

consult with in determining how to regulate CCRs under RCRA, combined with EPA’s own 

Reports to Congress and two final Regulatory Determinations rejecting the concept of regulating 

CCRs under RCRA’s hazardous waste program, the Subtitle D option provides the only lawful 

regulatory approach for these materials under RCRA

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
169

Comment Number: EPA-HQ-RCRA-2009-0640-09885-2

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

EPA published its first final Regulatory Determination for CCRs on August 9, 1993. This final 

Regulatory Determination set forth EPA’s conclusion that RCRA Subtitle C regulation of the 

four large-volume CCRs – fly ash, bottom ash, boiler slag, and flue gas desulfurization waste –

was not warranted. Specifically, the Agency concluded that Regulation under Subtitle C of 

RCRA is inappropriate for the four waste streams that were studied [fly ash, bottom ash, boiler 

slag, and flue gas emission control waste] because of the limited risks posed by them and the 

existence of generally adequate State and Federal regulatory programs. The Agency also believes 

that the potential for damage from these wastes is most often determined by site- or regionspecific factors and that the current State approach to regulation is thus appropriate. Therefore, 

the Agency will continue to exempt these wastes from regulation as hazardous wastes under 

RCRA Subtitle C .... EPA will consider these wastes during the Agency’s ongoing assessment 

of industrial nonhazardous wastes under RCRA Subtitle D.

EPA determined that the four large-volume CCRs did not warrant Subtitle C hazardous waste 

controls, concluding that the inflexible Subtitle C hazardous waste framework was wholly 

inappropriate for CCRs. The agency stated that “it is unlikely that Subtitle C would effectively 

address the problems associated with the four large-volume fossil-fuel combustion wastes 

[CCRs] without imposing unnecessary costs.” EPA found that the rigid nature of the Subtitle C 

regulatory system would result in excess costs and unnecessary regulation as applied to CCR 

management units:

A Subtitle C system would require coal combustion units to obtain a [RCRA] Subtitle C permit 

(which would unnecessarily duplicate existing State requirements) and would establish a series 

of waste unit design and operating requirements for these wastes, which would generally be in 

excess of requirements to protect human health and the environment. For example, if such wastes 

were placed in the Subtitle C universe, all ash disposal units would be required to meet specific 

liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, 

geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual 

rainfall, distance to drinking water sources, soil type) and the wastes potential to leach into the 

groundwater and travel to exposure points is linked to such factors, it is more appropriate for 

individual States to have the flexibility necessary to tailor specific controls to the site or region 

specific risks posed by these wastes.

Following issuance of the 1993 Regulatory Determination, EPA began work on its second report 

to Congress on the remaining fossil fuel combustion wastes, including CCRs managed with 

certain low-volume wastes. EPA issued its second Report to Congress in March 1999, reiterating 
170

“that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of 

these wastes and that the continued use of site and region specific approaches by the states is 

more appropriate for addressing the limited human health and environmental risks that may be 

associated with disposal of these wastes.” EPA also reiterated its belief that regulating CCRs 

under RCRA’s hazardous waste program would unnecessarily duplicate existing state 

requirements and would establish a series of waste unit design and operating requirements for 

these wastes that would most often be in excess of requirements to protect human health and the 

environment.

EPA completed the statutorily-required Bevill amendment process in May 2000 when it issued 

its final Regulatory Determination for all remaining fossil fuel combustion wastes, including 

CCRs managed with certain low-volume wastes. Based on record evidence, hearings and public 

comment on the 1999 Report to Congress, EPA once again concluded that CCRs and other fossil 

fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste 

program. EPA concluded instead that the development of national non-hazardous solid waste 

regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfills or 

surface impoundments. In addition to the fact that CCRs rarely exhibit a hazardous waste 

characteristic, EPA explained that its final determination was based on the improving trends in 

present CCR disposal and utilization practices, the current and potential utilization of CCRs (i.e., 

beneficial use) and Congress’ admonition in the Bevill amendment against duplication of efforts 

by other federal and state agencies. EPA pointed to the record evidence that the utility industry 

has made significant improvements in its waste management practices over recent years and to 

similar record evidence showing that “[CCR regulatory] programs have, in fact, substantially 

improved over the last 15 years or so.”

In fact, EPA found that the ability of most states to impose specific regulatory controls for coal 

combustion wastes has increased almost three-fold over the past 15 years. EPA concluded that 

with the exception of relatively few states, the regulatory infrastructure is generally in place at 

the state level to ensure adequate management of these wastes. Thus, EPA concluded that “[w]e 

believe that subtitle D regulations are the most appropriate mechanism for ensuring that these 

wastes disposed in landfills and surface impoundments are managed safely.” Given existing state 

CCR regulatory capabilities and the evidence that basic controls are increasingly being put in by 

the state and facilities, EPA was mindful of Congress’s directive in section 8002(n) that the 

agency, in reaching a final determination, consider “[the] action of state and other federal 

agencies with a view to avoiding duplication of effort.” Consistent with this statutory dictate, 

EPA concluded that Subtitle D controls will provide sufficient clarity and incentive for states to 

close the remaining gaps in coverage, and for facilities to ensure that their wastes are managed 

properly. Also critical to EPA’s final determination that CCRs do not warrant regulation under 

Subtitle C was the Bevill amendment’s direction in RCRA section 8002(n) that any final 

decision take into account the current and potential utilization of such materials. In particular, 

EPA saw a potential downside to pursuing a Subtitle C approach, citing the concerns expressed 

by commenters that subjecting any coal combustion wastes to a Subtitle C regime would place a 

significant stigma on these wastes, the most important effect being that it would adversely 

impact beneficial reuse. EPA acknowledged the possibility that the Subtitle C approach could 

have unintended consequences and that the agency was particularly concerned about any adverse 

effect on the beneficial reuse market for these wastes. EPA concluded that, given its conclusion 
171

that the Subtitle D approach should be fully effective in protecting human health and the 

environment, and given the large and salutary role that beneficial reuse plays for this waste, 

concern over stigma was a factor supporting the agency’s decision that Subtitle C regulation is 

unwarranted in light of the decision to pursue a Subtitle D approach.

After EPA issued its final 2000 Regulatory Determination, the agency continued to evaluate 

options for implementing Subtitle D non-hazardous waste regulations for CCRs. As part of this 

process, in 2005 and 2006, EPA and the U.S. Department of Energy (DOE) jointly conducted a 

study of current and recent (1) management practices for CCR disposal by industry, (2) state 

regulatory requirements for CCR management and (3) implementation of state requirements by 

state authorities. This study examined landfills and surface impoundments that were permitted, 

built, or laterally expanded between January 1, 1994 and December 31, 2004 to determine what 

changes, if any, in CCR disposal management practices and state regulatory controls had 

occurred since the 1994 close of the administrative record for the Bevill Regulatory 

Determination and EPA’s 1999 Report to Congress.

In a report titled “Coal Combustion Waste Management at Landfills and Surface Impoundments, 

1994-2004” (DOE/EPA Report), DOE and EPA found that, “[b]etween 1994 and 2004, the 

amount and quality of environmental controls used at CCW management units appear to have 

increased.” The DOE/EPA Report cited improvements in the management of CCRs in new or 

expanded landfills and surface impoundments, including the use of liners and the monitoring of 

groundwater. EPA and DOE also examined whether state CCR regulatory controls had similarly 

improved and found that “[i]n eight areas of regulatory control reviewed for this report, more 

CCWs destined for landfills in the States reviewed had tightened regulatory controls than had 

relaxed controls between the times data were collected for the 1988 [Report to Congress] and for 

this report.” Consistent with this continuing improvement in the administration of state CCR 

controls, EPA and DOE also found that the grants of variances from regulatory controls by state 

regulators had sound scientific support. Based on the above, the DOE/EPA Report concluded 

that “[t]he data and analyses documented in this report provide new information that appears to 

show improved management of CCWs in both landfills and surface impoundments.” The 

findings of the DOE/EPA Report are significant because they provide updated information 

supporting the conclusions in the final 2000 Regulatory Determination that Subtitle C regulation 

of CCRs is not warranted due, in part, to the significant and continuing improvements in CCR 

waste management practices and corresponding improvements in state CCR regulatory 

programs. Since completion of the DOE/EPA Report in 2007, several states have proposed 

and/or implemented further enhancements of their CCR controls

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09887-5

Organization1:

Commenter1:Thomas H. Adams

Commenter Type: Private Citizen

Classification: Substantive
172

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In the determination of 2000, the EPA stated that Subtitle D regulation of coal ash disposal was 

needed. That regulation was never implemented. I urge the EPA to do what it said was 

appropriate 10 years ago and measure the results. Going from no regulation to the most extreme 

regulatory option available, Subtitle C, is neither rational nor warranted

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10017-17

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

Moreover, the EPA may not so cavalierly reverse the Bevill Regulatory Determinations it made 

previously in August 1993 and May 2000. As mentioned in the Subtitle D comments above, EPA 

has provided two Reports to Congress ("Reports") and issued two Regulatory Determinations 

("Determinations") that were based on extensive research and analysis. Both Reports and 

Determinations clearly affirmed the regulation of CCRs as non-hazardous waste and supported 

regulation of CCRs under RCRA Subtitle D. In the Reports and Determinations, EPA 

recommended that states implement CCR disposal rules under RCRA Subtitle D and supported 

the continued beneficial use of CCRs.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10017-8

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.4 2.1.4

Comment Excerpt Text:
173

In its proposal, EPA appears to ignore the long rulemaking record relating to CCRs. Over the last 

twenty years, EPA has provided two Reports to Congress and issued two Regulatory 

Determinations that unequivocally found that CCRs do not warrant regulation as a hazardous 

waste. Further, the Reports reiterate the fact that states are the most appropriate regulatory 

agencies for regulation of CCRs and noted that EPA would retain its existing regulatory 

authority under RCRA's imminent and substantial endangerment provisions under RCRA 

Section 7003. If EPA is now concerned with its ability to enforce a Subtitle D program, EPA 

should look to the federal enforceable regulations for municipal solid waste landfills 

("MSWLFs") under 40 CFR Part 258, as authorized by RCRA Sections 4010(c) and 4005(c) for 

guidance. The MSWLF regulations provide states with program implementation and regulatory 

authority over MSWLFs while allowing EPA to step in when states do not fulfill their 

obligations. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-4

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. EPA’s March 1999 Report To Congress On CCRs

Following issuance of the 1993 Regulatory Determination, EPA began work on its second report 

to Congress on the remaining fossil fuel combustion wastes, including CCRs managed with 

certain low-volume wastes. EPA issued its second Report to Congress in March 1999, reiterating 

that “that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal 

of these wastes and that the continued use of site and region specific approaches by the states is 

more appropriate for addressing the limited human health and environmental risks that may be 

associated with disposal of these wastes.” 1999 Report to Congress Vol. 1 at 3-5. EPA also 

reiterated its belief that regulating CCRs under RCRA‘s hazardous waste program would 

unnecessarily duplicate existing state requirements, and would establish a series of waste unit 

design and operating requirements for these wastes that would most often exceed the 

requirements necessary to protect human health and the environment. Id.

D. EPA’s 2000 Final Regulatory Determination For CCRs

EPA completed the statutorily-required Bevill Amendment process in May 2000 when it issued 

its final Regulatory Determination for all remaining fossil fuel combustion wastes, including 
174

CCRs managed with certain low-volume wastes. 65 Fed. Reg. 32214 (May 22, 2000). Based on 

the record evidence, hearings, and public comment on the 1999 Report to Congress, EPA once 

again concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation 

under RCRA‘s Subtitle C hazardous waste program. EPA concluded instead that the 

development of national non- hazardous solid waste regulations under RCRA Subtitle D is 

appropriate when CCRs are disposed of in landfills or surface impoundments. Id.

In addition to the fact that CCRs rarely exhibit a hazardous waste characteristic (id. at 32222), 

EPA explained that its final determination was based on the following factors: improving trends 

in present CCR disposal and utilization practices per the Bevill study factor in section 

8002(n)(2); the current and potential utilization of CCRs (i.e., beneficial use) per the Bevill study 

factor in section 8002(n)(8); and Congress‘s admonition in the Bevill Amendment against 

duplication of efforts by other federal and state agencies. Id. at 32215. EPA pointed to the record 

evidence, as set forth in the 1999 Report to Congress, that the utility industry had made 

significant improvements in its waste management practices and to similar record evidence 

showing that “[CCR regulatory] programs have, in fact, substantially improved over the last 15 

years or so. Id. at 32222, 32228-29.

In fact, EPA found that the ability for most states to impose specific regulatory controls for coal 

combustion wastes has increased almost three-fold over the past 15 years. Id. at 32230. EPA 

concluded that with the exception of relatively few states, the regulatory infrastructure is 

generally in place at the state level to ensure adequate management of these wastes. Id. at 32217 

(as discussed below, a DOE/EPA Report shows that state CCR regulatory programs have 

continued to improve since EPA‘s 2000 final Regulatory Determination). Thus, EPA concluded 

that “[w]e believe that subtitle D regulations are the most appropriate mechanism for ensuring 

that these wastes disposed in landfills and surface impoundments are managed safely.” Id. At 

32221.

Given state law, and the evidence that CCR controls were improving, EPA was mindful of 

Congress‘s directive in section 8002(n) that the Agency, in reaching a final determination, 

consider [the] action of state and other federal agencies with a view to avoiding duplication of 

effort. Id. at 32217. Consistent with this statutory dictate, EPA concluded that Subtitle D controls 

will provide sufficient clarity and incentive for states to close the remaining gaps in coverage, 

and for facilities to ensure that their wastes are managed properly. Id. at 32217.

Also critical to EPA‘s final determination that CCRs do not warrant regulation under Subtitle C 

was the Bevill Amendment‘s direction in RCRA section 8002(n) that any final decision take into 

account the current and potential utilization of such materials. In particular, EPA saw a potential 

downside to pursuing a Subtitle C approach, citing the concerns of commenters that subjecting 

any coal combustion wastes to a Subtitle C regime would place a significant stigma on these 

wastes, notably that it would adversely impact beneficial reuse. Id. at 32217. EPA acknowledged 

the possibility that the [Subtitle C] approach could have unintended consequences, and that it 

was particularly concerned about any adverse effect on the beneficial re-use market for these 

wastes. Id. Thus, while normally concerns about stigma are not a deciding factor in EPA‘s 

decisions under RCRA, EPA concluded that, given its conclusion that “the subtitle D approach 

here should be fully effective in protecting human health and the environment, and given the 
175

large and salutary role that beneficial reuse plays for this waste, concern over stigma is a factor 

supporting our decision today that subtitle C regulation is unwarranted in light of our decision to 

pursue a subtitle D approach.” Id. [Footnote 8: It is also is worth noting that EPA considered, and 

ultimately rejected, a so-called Subtitle C “contingent management” option for CCRs. This 

option was similar to that proposed for cement kiln dust, and would have involved establishing 

federal Subtitle D non-hazardous waste rules for CCR disposal facilities. CCRs managed in 

accordance with the applicable Subtitle D standards would remain exempt from Subtitle C 

hazardous waste controls. Id. at 32232. However, those facilities that committed “egregious or 

repeated violations of” the applicable Subtitle D CCR management standards would have been 

“moved into the subtitle C program” and the CCRs at such facilities would have been subject to 

tailored Subtitle C hazardous waste controls. Id. Even though the contingent management 

Subtitle C option evaluated and rejected by EPA in 2000 was less sweeping in scope than the 

current Subtitle C option, EPA‘s concern with the adverse stigmatizing effects of this more 

limited option on the beneficial use of CCRs were significant enough to influence EPA‘s 

determination that the Subtitle C contingent management option was not warranted for CCRs.]

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-6

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

F. Notice Of Data Availability

As part of the process for following-up on its 2000 Regulatory Determination to develop Subtitle 

D non-hazardous waste regulations for CCRs, EPA issued a Notice of Data Availability 

(“NODA”) in August 2007 announcing the availability of new information on the management 

of CCRs in landfills and surface impoundments. EPA sought comment on this new information 

to better assess “how, if at all, this additional information should affect the Agency‘s decisions as 

it continues to follow-up on its Regulatory Determination for [CCRs] disposed of in landfills and 

surface impoundments.” 72 Fed. Reg. 49714 (Aug. 29, 2007). The new information included (1) 

the joint DOE/EPA study referenced above providing an update on the status of state CCR 

disposal regulations, and (2) a draft risk assessment conducted by EPA on the management of 

CCRs in landfills and EPA‘s assessment of CCR disposal units that it had identified as “damage 

cases.” Id. EPA also sought comment on a rulemaking petition filed by citizens‘ groups, as well 

as approaches suggested by the electric utility industry, including USWAG, regarding the 

management of CCRs. EPA stated that it would consider the new information and the associated 
176

comments, as well as the results of the peer review of the draft risk assessment, “as it continues 

to follow-up on its Regulatory Determination for [CCRs] disposed of in landfills and surface 

impoundments.” Id.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-8

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

A. EPA Completed The Bevill Regulatory Process For CCRs In 2000 And The Statute Does Not 

Authorize EPA To Reverse That Decision

EPA has completed the Bevill process pursuant to a judicially-imposed deadline and determined, 

in accordance with the congressionally-mandated decision-making process, that CCRs do not 

warrant regulation under Subtitle C. The statutory decision making process is complete and 

RCRA does not authorize EPA to decide to take a second bite at the apple and reverse its final 

CCR Regulatory Determinations in a manner of its own choosing. 

Congress established a detailed process by which EPA could determine whether and how to 

regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining 

that CCRs do not warrant regulation under RCRA Subtitle C, and concluding instead that CCRs 

warrant regulation under RCRA‘s Subtitle D nonhazardous waste program. The plain language 

of the statute does not contemplate, let alone authorize, EPA undertaking another round of the 

Bevill decision-making for CCRs. If it did, the statutory process and its associated deadlines for 

reaching a final regulatory determination would have no meaning and EPA could continually 

change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.

EPA readily concedes that the Bevill Amendment does not include a process for Agency reversal 

of the CCR final Regulatory Determinations. In response to an inquiry from Representative 

Markey following the Kingston ash release regarding whether and how EPA could reverse its 

final CCR Regulatory Determinations for CCRs, EPA‘s then- Acting Associate Administrator 

readily acknowledged that “RCRA does not specifically spell out the process by which we 

[would] revise the Regulatory Determination.” See Letter from Joyce K. Frank, EPA Acting 

Associate Administrator, to Rep. Markey, Chair, House Committee on Energy and Commerce, at 

3 (Jan. 30, 2009) (“Frank Letter”) (attached as Appendix 4). As the D.C. Circuit has held, 

Congress‘ failure to grant an agency a given power is not an ambiguity as to whether that power 

has, in fact, been granted. On the contrary, and as this Court persistently has recognized, a 

statutory silence on the granting of a power is a denial of that power to the agency. American 

Bus. Ass’n v. Slater, 231 F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J., concurring) (emphasis added). 
177

Here, even EPA acknowledges that the statute does not speak to whether and how EPA can 

revise its final CCR Regulatory Determinations. The Agency nonetheless assumes that it 

possesses such power. It does not.

It is a fundamental principle of administrative law that an agency‘s authority to act must come 

directly from Congress. Absent such authority, an agency may not act. See U.S. Telecom Ass’n 

v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) ([S]tatutory silence simply leaves th[e] lack of 

authority untouched. In other words, the failure of Congress to use Thou Shalt Not language 

doesn‘t create a statutory ambiguity of the sort that triggers Chevron deference.); Ethyl Corp. v. 

EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) (“We refuse ... to presume a delegation of power 

merely because Congress has not expressly withheld such power.”); Ry. Labor Executives’ 

Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (“Were courts to 

presume a delegation of power absent an express withholding of such power, agencies would 

enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely 

with the Constitution as well.”) (emphasis in original). [Footnote 10: See also Adams Fruit Co. v. 

Barrett, 494 U.S. 638, 649 (1990) (“A 'gap' is not created in a statutory scheme merely because a 

statute does not restate the truism that States may not preempt federal law.”); Aid Ass’n for 

Lutherans v. USPS, 321 F.3d 1166, 1174-75 (D.C. Cir. 2003) (“[T]he Postal Service‘s position 

seems to be that the disputed regulations are permissible because the statute does not expressly 

foreclose the construction advanced by the agency. We reject this position as entirely untenable 

under well established case law.”).]

The Bevill Amendment is completely silent on EPA‘s authority to redo or reverse a final 

regulatory determination that the Agency has already properly reached pursuant to the 

Amendment‘s statutorily prescribed procedures and deadlines. [Footnote 11: Though, as noted 

above, EPA missed the statutory deadlines set forth in the statute for reaching a final regulatory 

determination for CCRs; a citizen suit over this missed statutory deadline resulted in EPA being 

subject to court-ordered deadlines for issuing both the 1993 and 2000 CCR final Regulatory 

Determinations. ] If Congress had wanted to give EPA this authority, it would have done so 

explicitly.[Footnote 12: Indeed, when Congress wishes to give an agency the authority to revisit 

prior statutory compelled actions, it knows how to do so. See e.g., Clean Air Act § 112(c)(1), 42 

U.S.C. § 7412(c)(1) (1990) (“CAA”) (directing EPA to re-evaluate no less often then every eight 

years and revise, as appropriate, based on public comment or new information, the list of 

categories of major sources and area sources listed by EPA under CAA Section 112(c)(3)); see 

also CAA § 109(d), 42 U.S.C. § 7409(d) (directing EPA to review at five year intervals the 

criteria for pollutants published under CAA Section 7408 and the national ambient air quality 

standards promulgated under Section 7409 and make such revisions and promulgate new 

standards as may be appropriate). As explained above, Congress has not provided EPA with 

similar authority to reevaluate and revise its final CCR Regulatory Determinations.] As the 

above federal decisions make clear, such silence means that EPA does not have the authority to 

undertake, through a process and timing of its own choosing, a second regulatory determination.

The plain language of the statute provides for only a one-time decision, directing EPA to 

determine, not later than six months after the statutorily-required report to Congress on CCRs, 

whether Subtitle C regulation for CCRs is warranted. See RCRA § 3001(b)(3)(C). That 

determination, which was to be based on information developed or accumulated pursuant to such 
178

study, public hearings, and comment, was to be published in the Federal Register and 

accompanied by an explanation and justification of the reasons for it. Id. EPA completed this 

statutory process for CCRs over ten years ago, concluding for a multitude of reasons that CCRs 

do not warrant regulation under RCRA Subtitle C. The statute simply does not empower EPA to 

revisit its final decision and render a new determination.

If EPA wishes once more to undertake the statutorily-prescribed process for reaching a final 

regulatory determination for CCRs, it must obtain this authority from Congress. If Congress 

were to grant EPA such authority, it would be reasonable to expect that Congress would establish 

new statutory deadlines and perhaps new and different statutory study factors for EPA to 

evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority 

from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory 

Determinations for CCRs. Therefore, EPA cannot pursue the Subtitle C option. [Footnote 13: 

While “[a]n agency can normally change its position and reverse a decision ... Congress, 

however, undoubtedly can limit an agency‘s discretion to reverse itself[.]” New Jersey v. EPA, 

517 F.3d 574, 582-83 (D.C. Cir. 2008). Here, Congress has limited EPA‘s ability to reverse its 

final Bevill Regulatory Determination by specifying prescribed procedures and timeframes for 

completing the determination and not authorizing the Agency to revisit that final determination 

and issuing a new determination. ]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10497-2

Organization1:Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

III. EPA’s Proposed Regulation of CCRs under Subtitle C is Ultra Vires and Exceeds EPA’s

Statutory Authority

For the first time, EPA has published a proposal to regulate CCRs destined for disposal as 

hazardous wastes. In so doing, EPA is attempting to reverse its 1993 final regulatory 

determination which, following an extensive study, report to Congress, and public comment, 

determined that subtitle C regulation of CCRs was not warranted. 58 Fed. Reg. 42466 (Aug. 9, 

1993). This determination was confirmed in 1999 in the second part of EPA’s regulatory 

determination which applied to coal combustion wastes other than the four large volume coal 

combustion wastes. 65 Fed. Reg. 32214 (May 22, 2000). EPA was granted limited statutory 

authority to make a single determination as to whether CCRs should be regulated as a hazardous 

waste. EPA exercised this authority in 1993 in relation to the large volume CCRs and does not 

have the statutory authority to reverse that determination absent specific congressional 

authorization. Moreover, even assuming EPA did possess such authority, it did not follow the 
179

mandated statutory process for rendering a regulatory determination. Consequently, the subtitle 

C option is ultra vires and unlawful.

a. EPA’s Regulatory Determination is Complete and Can Not be Reopened Absent Specific 

Congressional Authorization

In 1980, Congress amended the Resource Conservation and Recovery Act (“RCRA”) and 

established an exemption from hazardous waste regulations for CCRs. The exemption, known as 

the Bevill Amendment, is set forth in a section entitled “Identification and listing of hazardous 

waste.” 42 U.S.C. § 6921. Subsection (a) requires that EPA “promulgate criteria for identifying 

the characteristics of hazardous waste, and for listing specific hazardous wastes, which would be 

subject to the provisions of this subchapter.” Id. at § 6921(a). Within that statutory section, CCRs 

were specifically identified as exempt from hazardous waste regulations pending EPA’s 

completion of a study. Id. at § 6921(b)(3)(A). Specifically, EPA was directed to conduct “a 

detailed and comprehensive study” analyzing eight enumerated factors, and to submit a “report 

on the adverse effects on human health and the environment, if any, of the disposal and 

utilization of CCRs.” 42 U.S.C. § 6982(n). The report was to be submitted to Congress, and 

thereafter subject to public comment and hearings. 42 U.S.C. § 6921(b)(3)(C). Based on its 

findings, EPA was to publish its determination as to whether CCRs should be regulated as 

hazardous waste. Id. In 1993, EPA completed this process for fly ash, bottom ash, boiler slag,

and flue gas emission control waste and published its final regulatory determination in the 

Federal Register. 58 Fed. Reg. 42466. Specifically, the agency concluded that these large volume 

CCRs did not warrant regulation as hazardous waste. Id.

This final regulatory determination was affirmed by EPA in May 2000 when it published its 

regulatory determination for all other fossil fuel combustion wastes generated at electric utilities 

that were not addressed in 1993. 65 Fed. Reg. 32214. While EPA found that subtitle C regulation 

of CCRs was unwarranted, it concluded that subtitle D regulation of CCRs disposed in landfills 

or surface impoundments, or used in minefill operations, was warranted. Id. EPA based its 

determination, in part, on increasing state regulation of CCR management, finding that “the 

regulatory infrastructure is generally in place at the state level to ensure adequate management of 

these wastes.” Id. at 32216-17. Furthermore, EPA stated that subtitle D controls would provide 

sufficient clarity and incentive for states to close the remaining gaps in state coverage. Id. at 

32217.

Despite the findings of the 2000 regulatory determination, EPA did not promulgate subtitle D 

regulations. Instead, more than eight (8) years later, it performed a u-turn and drafted a 

regulatory proposal that would subject CCRs to subtitle C regulation. Draft CCR Proposal, EPAHQ-RCRA–2009-0640-0013 (Oct. 16, 2009). This regulatory proposal was substantially revised 

following review by the Office of Management and Budget and resulted in the current Proposed 

Rules. Comparison of Final Draft Rule, EPA-HQ-RCRA–2009-0640-0012 (May 3, 2010).

Even as revised, the adoption of the subtitle C proposal would unlawfully reverse the 1993 

regulatory determination. EPA cannot simply reverse its final regulatory determination without 

Congressional authorization. The Bevill Amendment directed EPA to follow a specific and 

comprehensive process culminating in a final determination as to whether subtitle C regulation 

of CCRs was warranted. 42 U.S.C § 6921(b)(3)(C). EPA followed that process and in 1993 

issued its final regulatory determination for the four large Volume CCRs. 58 Fed. Reg. 42466. 

Congress did not authorize EPA to revisit its determination or conduct an ongoing evaluation. 

The statutorily mandated process, therefore, is complete, and there remains nothing further for 

EPA to do absent specific Congressional direction or authorization. Absent such clear direction, 
180

EPA is without authority to reverse its final determination.

The statutory text of the Bevill Amendment shows Congress’s unmistakable, unambiguous 

expressed intent that EPA conduct only one determination. Congress repeatedly called on EPA to 

produce one, single study. 42 U.S.C. § 6982(n) (“a ... study,” “a report,” “such study,” “this 

study,” “shall publish a study on such report”). Furthermore, the verbs in the text indicate EPA 

and Congress must act on a single study. Id. (providing for study of several factors at one time; 

for publication of the study on a single, specified date; and for presentation of a single report to 

committees). [Footnote 1: EPA ultimately performed two studies and two regulatory 

determinations published in 1993 and 2000. This bifurcated process was imposed by the consent 

decree entered in Gearhart v. Browner, No. 91-2435 (D.D.C), as a result of EPA’s delayed 

completion of the study and report mandated by Congress. Specifically, the consent decree 

directed EPA to complete its regulatory determination for the four large volume wastes by 

August 2, 1993, and to complete its regulatory determination for the “remaining wastes” - i.e., all 

other fossil fuel combustion wastes generated at electric utilities that were not addressed in 1993 

- by April 25, 2000. 65 Fed. Reg. at 32218. Even so, this simply meant EPA’s single study was 

divided into two parts, thereby keeping with Congressional intent.]

Furthermore, this understanding of Congressional intent is supported by the statutory text of 

RCRA. Section 8002 of the act, 42 U.S.C. § 6982, is entitled “Special studies; plans for research, 

development, and demonstrations.” The Bevill Amendment was placed in this section because it 

was only one of many studies Congress mandated that EPA conduct. Each of these studies, then, 

provides some context to the Bevill Amendment. Section 8002 delineates over 19 types of 

studies. Of these, 18 use similar language to the Bevill Amendment and clearly indicate that only 

one study was to be conducted.

Conversely, subsection (s), which deals with extending the useful life of landfills, just as clearly 

indicates that multiple studies are necessary. Specifically, this subsection requires 

“comprehensive studies,” and “such studies shall address” a number of factors Congress listed. 

Id. at (s). Congress also indicated its ongoing interest in the subject by requiring that “[t]he 

Administrator shall periodically report on the results of such studies.” Id. Thus, had Congress 

intended for the Bevill Amendment determination to be ongoing, it would have used language 

like it did in subsection (s). Congress would have stated that it wanted multiple reports and 

would have explicitly required EPA to continue to submit periodic reports. Congress did not 

provide such authority, and EPA cannot act without it.

EPA may claim that it left the door open for an ongoing review. It did not, and it cannot. In the 

2000 regulatory determination, EPA stated that it “may conclude over the next several months 

that this decision [not to regulate CCRs under subtitle C] should be revised.” 65 Fed. Reg. 

32218. Such language is meaningless, absent clear Congressional authorization, and it does not 

enable EPA to render its final regulatory determination a work in progress. This argument also 

ignores the fact that the final regulatory determination for the four large volume CCRs (fly ash, 

bottom ash, boiler slag and FGD waste) was published in 1993. While the 2000 regulatory 

determination affirmed the 1993 regulatory determination, its focus was explicitly limited to the 

“remaining wastes.” Id. Therefore, even if such language was sufficient to keep the regulatory 

determination open, it would be limited to the subject matter of that specific regulatory 

determination and not the four large volume CCRs

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

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 
181

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

Comment Number: EPA-HQ-RCRA-2009-0640-10498-6

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1:Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

a. The Decisive Factors in EPA’s Two Previous Determinations Remain Valid Today

In its 1993 Regulatory Determination, EPA recognized that hazardous constituents in CCRs have 

the potential to leach into groundwater under certain conditions, but that exceedences above 

toxicity characteristic regulatory levels were infrequent and that the average concentrations of 

constituents were below characteristic toxic levels. 58 Fed. Reg. 42475-76. EPA also found that 

the potential for human exposure solely from the large-volume CCRs was limited under the 

management practices employed at the time and further noted that management practices were 

moving toward more protective management practices, including lined systems and groundwater 

monitoring. Id. These findings lead EPA to conclude that management practices and regulatory 

controls were adequate. Id. at 42476. Not only did EPA conclude that existing state programs 

were adequate, EPA determined that it was “unlikely that subtitle C regulations would 

effectively address the problems associated with the four-large volume CCRs without imposing 

unnecessary controls.” Id. at 42477. Specifically, EPA found that many of the unit design and 

operating requirements would exceed requirements to protect human health and the environment, 

and that existing state requirements would be unnecessarily duplicated. Id. Based on these 

findings, EPA concluded that subtitle C regulations were not appropriate to address the problems 

associated with CCRs and that they should be addressed by states. Id.

Again, in 2000, EPA reached the same ultimate determination for similar reasons. EPA found 

that CCRs may pose risks to human health and the environment if they are not properly 

managed. 65 Fed. Reg. 32216. At the same time, however, EPA recognized that generally the 

regulatory infrastructure was in place at the state level to ensure that CCRs are adequately 

managed. Id. at 32217. Indeed, EPA recognized states were increasingly requiring liners and 

groundwater monitoring for CCR landfills and surface impoundments and that there was 

increased regulatory oversight of these facilities by states. Id. at 32216. In fact, the trends in 

disposal and utilization practices were identified by EPA as the first of three “decisive factors” in 

its decision not to regulate CCRs under subtitle C. Id. at 32215. EPA’s own statistics indicate 

that this factor remains valid today.

Based on the information presented in the 2000 joint EPA and United States Department of 

Energy (“DOE”) study, state regulation of CCR landfills and surface impoundments continues to 

improve. EPA & DOE, Coal Combustion Waste Management at Landfills and Surface 

Impoundments, 1994-2004, (Aug. 2006), at 

http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/coal_waste_report.pdf. 
182

(“EPA/DOE Report”).[Footnote 4: Although the EPA/DOE Report addressed only eleven states, 

those states represent approximately half of the CCRs generated in the nation. 75 Fed. Reg. 

35151.] As noted by EPA, with one exception, all new landfills and surface impoundments 

constructed between 1994 and 2004 were constructed with liners. 75 Fed. Reg. 35151. By way of 

comparison, from 1985 to 1995, seventy-five (75) percent of landfills and sixty (60) percent of 

surface impoundments were constructed with liners. EPA/DOE Report, at S-5. A similar increase 

was identified in relation to the number of landfills and surface impoundments constructed with 

groundwater monitoring systems. Ninety-seven (97) percent of landfills and nearly eighty (80) 

percent of surface impoundments constructed or expanded between 1994 and 2004 have 

groundwater monitoring systems. Id. Again, by way of comparison, eighty-eight (88) percent and 

sixty-five (65) percent of landfills and surface impoundments respectively, constructed between 

1985 and 1995, had groundwater monitoring systems. Id. at S-6. The EPA/DOE Report also 

found that the majority of states surveyed had tightened regulatory controls for liners, 

groundwater monitoring, and leachate collection since the time data was collected for the 1988 

EPA Report to Congress. Id. at S-8. 

Based on these findings, the EPA/DOE Report concluded that the “data and analyses documents 

in this report provide new information that appears to show improved management of [CCRs] in 

both landfills and surface impoundments.” Id. at S-11; see also, 75 Fed. Reg. at 35151 (stating 

that “[t]he results of the joint DOE and EPA study...indicate that of the states evaluated in this 

report, state regulations have generally improved since 2000. In addition it would appear that the 

industry itself is changing and improving its management practices.”) A recent survey conducted 

by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) 

also indicates that state regulation of CCRs continues to improve. Thirty-six (36) out of fortytwo (42) states that generate CCRs have permit programs for CCR landfills. Letter from 

ASTSWMO to Matt Hale (Apr. 1, 2009), EPA-HQ-RCRA-2009-0640-0024 (“ASTSWMO 

Survey”). Only three (3) states indicated that they do not have a permit program for CCR 

landfills, the remaining three (3) states did not respond. Id. Of the thirty-six (36) states that have 

CCR surface impoundments, twenty-five (25) stated that they have a permit program in place for 

these facilities. Id. Again, only three (3) states responded that they do not have a regulatory 

program for surface impoundments and eight (8) states did not respond. Id. In the Proposed 

Rules, EPA provided additional information from ASTSWMO, which indicates that fifteen states 

had revised their regulatory requirements for CCRs since 2000 and that eight (8) states now 

require groundwater monitoring that had not previously. 75 Fed. Reg. 35152.

It also is important to note that while some states may not have specific regulations for the 

disposal of CCRs, they do impose liner and groundwater monitoring requirements under separate 

regulatory authorities. Florida regulates CCRs as an industrial solid waste and many of the liner 

and groundwater monitoring provisions found in Florida’s approved subtitle D program are 

typically applied to CCR landfills and surface impoundments as part of the PPSA certification 

process and conditions of certification issued there under. See 75 Fed. Reg. 35152. Therefore, 

the actual number of states that are imposing liner and groundwater monitoring requirements 

may be higher than reflected in the survey. Regardless, based on the foregoing information 

alone, it appears that states with CCR landfills and surface impoundments are continuing to 

make improvements in the regulation of CCRs, and that industry is making improvements to 

CCR management practices.
183

The second “decisive factor” cited by EPA in its 2000 determination not to regulate CCRs under 

subtitle C was the current and potential utilization of CCRs. 65 Fed. Reg. 32215. EPA 

acknowledged industry concerns regarding the adverse impact that subtitle C regulation of CCRs 

may have on beneficial use rates and stated that it did not want to “place any unnecessary 

barriers” on beneficial uses of these materials. 65 Fed. Reg. 32217. At the time, approximately 

twenty-three (23) percent (roughly twentyeight (28) million tons) of CCRs generated each year 

were beneficially used. Id. at 32217. In 2008, approximately thirty-seven (37) percent (roughly 

50 million tons) of CCRs generated each year were beneficially used. ACAA, Coal Combustion 

Product Production & Use Survey Report, (2008) available at 

http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_

100509.pdf.; see also 75 Fed. Reg. 35151. This represents a fourteen (14) percent increase in 

beneficial use over roughly an eight year period.

Although EPA has proposed to exempt certain CCRs that are destined for beneficial use from 

subtitle C regulation, the mere fact that CCRs destined for disposal may be subject to subtitle C 

regulation has already impacted the beneficial use market. One FCG member has already 

received requests from clients seeking to renegotiate existing contracts and to reduce “minimum 

take” provisions (i.e., the minimum amount of CCRs they are obligated to accept) and to include 

new terms that make their contractual obligations contingent upon the outcome of this 

rulemaking. At numerous public hearings on the Proposed Rules, CCR marketers and members 

of the recycling industry have submitted testimony detailing the stigma associated with subtitle C 

regulation of CCRs destined for disposal and the impact it is and will have on their businesses. 

At the public hearing in Charlotte, North Carolina, several company representatives and 

individuals testified that they have already experienced cancelled contracts or renegotiated 

contracts based purely on EPA’s proposed rules and the mere possibility of subtitle C regulation. 

Others testified that they have been informed by major clients that they will no longer purchase 

products produced from CCRs if the disposal of CCRs is regulated under subtitle C. Clearly, the 

stigma associated with the potential regulation of CCRs destined for disposal under subtitle C is 

adversely impacting the beneficial use of CCRs. If adopted, the subtitle C option will likely 

devastate the beneficial use market for CCRs. Concerns regarding potential “barriers” to CCR 

beneficial use, therefore, are equally, if not more valid today than they were in 2000.

The third “decisive” factor was the Congressional admonition against duplication of efforts by 

other Federal and state agencies. 65 Fed. Reg. 32215. This admonition was recognized in 1993 

by EPA when it specifically found that subtitle C regulations, particularly the need to obtain a 

subtitle C permit, would unnecessarily duplicate existing state regulations. See 58 Fed. Reg. 

42477. If that was true then, it is certainly true today. As discussed more fully above, the 

ASTSWMO survey found that the majority of states that generate CCR’s have permit programs 

in place for CCR landfills and surface impoundments. See 75 Fed. Reg. 35152. As EPA 

recognized, such permit programs are important to provide necessary regulatory oversight. Id. 

Therefore, the prevalence of such programs is a strong indicator that states are effectively 

regulating and overseeing the operation of CCR landfills and surface impoundments.

This trend was noted yet again in the 2000 Regulatory Determination, where EPA found that 

states had made substantial progress regulating the disposal of CCRs and the regulatory 
184

infrastructure was in place at the state level to ensure that CCRs are adequately managed. 65 Fed. 

Reg. 32217. The EPA/DOE Report and the ASTSWMO survey results both indicate that state 

regulation of CCR disposal has generally improved since then. 75 Fed. Reg. 35152. Therefore, in 

light of the increased state regulation of CCR landfills and surface impoundments, and the 

existence of state permitting programs, the admonition against duplication of state efforts is even 

more compelling now than it was in 2000.

The three decisive factors identified in 2000 as the basis for EPA’s affirmation that subtitle C 

regulation was unwarranted remain true today. Further, EPA has failed to provide any evidence 

indicating that state regulation of CCR disposal is not continuing to improve, that the beneficial 

utilization of CCRs will not be impacted by the subtitle C option, or that subtitle C regulation 

will not unnecessarily duplicate state regulations. Absent justification as to why these factors are 

no longer valid, adoption of the subtitle C option would be arbitrary and capricious. See Motor 

Vehicles Mfrs. Ass’n. v State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983) (finding that 

agencies “must examine the relevant data and articulate a satisfactory explanation for its action, 

including a "rational connection between the facts found and the choice made”)(internal 

quotations omitted). 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10517-5

Organization1:Palmetto Agribusiness Council (PABC)

Commenter1:Bob Battle

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We respectfully request that EPA stand by their previous RCRA designation in the May 2000 

Bevill Amendment and re-issue a "non-hazardous designation" for CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10542-1

Organization1:U.S. House of Representatives

Commenter1: Randy Stewart

Commenter Type: Federal Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4
185

Comment Excerpt Text:

1 . Such regulation is wholly unwarranted from an environmental perspective and is inconsistent 

with past EPA rulings on two occasions, in 1993 and again in 2000, the EPA has determined that 

coal ash should not be regulated as a hazardous waste under the RCRA's hazardous waste 

program. Nothing has changed regarding the nature of coal ash -it is the same product now as in 

1993 and in 2000. What has changed is that a TVA impoundment dam failed in December 2008, 

raising the awareness of how coal ash is stored. That was a structural issue with the dam itself - a 

totally separate issue from the composition of coal ash. There is no question that dam integrity 

must be assured for all impoundments, but this regulation does not address that issue

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. Contrary to the commenter’s statement that the rule does not cover the 

structural integrity of a surface impoundment, the commenter is referred to Unit VI or the final 

rule preamble and the associated regulatory text on structural integrity requirements.

Comment Number: EPA-HQ-RCRA-2011-0392-0199-16

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3

Comment Excerpt Text:

PCA believes that all of our comments – initial, supplemental, and NODA – have provided 

ample evidence and examples of incidents of stigma which have already occurred and can clearly 

be expected to continue, if CCRs are regulated under subtitle C. Our examples demonstrate and 

portend a serious decline and consequences to the reuse and recycling of CCRs in the future if 

the subtitle C option is adopted. Through our combined comments, and the examples of stigma 

that we and others have provided, we have highlighted the shortcomings and the arbitrariness of 

EPA’s reliance on experiences it has had with other wastes as its predictor that stigma will not 

occur if CCRs are regulated under subtitle C. These NODA comments, together with our initial 

and supplemental comments, have also demonstrated the serious flaws in the arguments and 

analysis regarding stigma that have been presented by Fortuna and Joint Advocates, respectively, 

in their submissions to the docket. PCA contends, therefore, that, if anything, a stronger case for 

stigma has been made and documented for this rulemaking than the record on which 

Administrator Browner relied when she made her 2000 determination and found there was 

sufficient reason to conclude:

"even though beneficially reused waste would not be hazardous under the contemplated subtitle 

C approach, the link to subtitle C would nonetheless tend to discourage purchase and re-use of 

the waste. We do not wish to place any unnecessary barriers on the beneficial uses of these 

wastes, because they conserve natural resources, reduce disposal costs and reduce the total 

amount of waste destined for disposal."
186

65 Fed. Reg. at 32217.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-17

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3 10.4.7

Comment Excerpt Text:

The appropriateness and, indeed, the continuing applicability of the caution that Administrator 

Browner determined was warranted in 2000, to this rulemaking, has now been given further 

credence by EPA’s regulatory review Plan. Under EPA’s Plan, regulatory reviews would be 

concluded on a 5-year cycle. Therefore, if the subtitle C option were adopted and were to result 

in the stigma and related consequences to reuse and recycling which PCA and others have good 

reason to contend will occur, it is highly unlikely that EPA would be able to take the quick action 

that would be required to remediate such damage to the reuse and recycling of CCRs that will 

have already occurred, let alone be able to take timely action to prevent that damage from 

continuing. As we explained earlier in these NODA comments, EPA’s ability to offset and overcome the negative information and smears that would have caused a stigma to occur in the first 

place would be an extremely difficult and time-consuming process. This assumes, of course, that 

it could even be accomplished; and as we discussed previously, however, PCA contends that a 

stigma once created will not be overcome.

On the other hand, if regulating CCRs under subtitle D is subsequently demonstrated to be 

inadequate, EPA could still turn to subtitle C; a remedial safeguard that Administrator Browner 

concluded was both reasonable and appropriate. As Administrator Browner rightly observed: “If 

this conclusion [regulating under subtitle D] turns out not to be warranted, we would be inclined 

to re-examine our current decision.” The reasonableness of that same approach here still exists.

Before concluding, one final aspect of the relevancy of EO 13563 and EPA’s Final Plan (Plan) to 

this rulemaking bears mention on EPA’s conduct of this rulemaking. Section 1.1.2 of the Plan is 

entitled “Improved Transparency” and proclaims EPA’s commitment “to enhance transparency 

by striving to expand public disclosure of pollution, compliance, and other regulatory 

information to more efficiently provide information to the public upon which choices can be 

made.” Plan at 7. To achieve that end, the Plan further states:

"Both when reviewing existing regulations and when developing new regulations, EPA intends 

to seek ways to expand public disclosure of pollution, compliance, and other regulatory 
187

information to improve the actual results of regulatory requirements and more efficiently provide 

the public with information necessary to participate in the regulatory process."

Id.

While in theory the foregoing statement is laudable, it was clearly not honored nor adhered to by 

EPA with respect to this NODA docket. On October 13, 2011, PCA delivered a letter to EPA 

requesting fourteen documents identified in the NODA docket that, because of copyright, had 

not been placed into the docket so that they could be readily accessed by the public. Although 

this practice has been common to EPA rulemakings in the past, it had also been EPA’s common 

practice to make such documents available to the public via email upon request to the docket 

room. Indeed, PCA has on several occasions had to request copyrighted documents from EPA, 

which the EPA did provide via email or mail. For example, on June 29, 2010, we asked for, and 

did receive by mail from EPA the five documents listed in the letter included with these 

comments as Appendix B. EPA will note that the five documents we requested specifically 

related to the underlying CCR rulemaking docket, EPA-HQ-RCRA-2009-0640.

It appears, however, that, in spite of the Agency’s goal of increased transparency, EPA recently 

changed its prior policy to make such documents available via email and mail, which benefitted 

the public by avoiding the need for any member of the public to have to physically come to EPA 

headquarters to obtain a copy of such documents or have to the obtain relevant rulemaking 

documents from another outside source. Moreover, the new policy appears to have been 

implemented unilaterally by EPA, without providing public announcement and explanation, 

and/or without EPA apparently feeling any need to solicit the public’s prior comment about its 

abrupt change in policy and the impact which this change would have on the functional ability of 

the public to obtain such documents prior to submitting rulemaking comments; i.e., a meaningful 

opportunity to participate in the rulemaking; in particular when EPA has give the public only 30 

days to submit comments in response to the NODA.

PCA’s request for the documents via email or mail was responded to via email on October 18, 

2011, i.e., five days after our document request had been submitted to EPA. A copy of the EPA 

contractor who responded to PCA’s request is included with these comments as Appendix C. It 

stated in relevant part:

"Requests are handled on a first-come first-serve basis. While our goal is to complete your 

request within 10 business days, this may not be possible due to high volume."

Most notable is the fact that this response did not provide any notice to PCA of the fact that EPA 

had changed its previous policy and would no longer provide the documents we had requested by 

email and or mail.

Following receipt of that response, PCA immediately contacted EPA again to renew our request 

for a comment extension; this time we requested just an additional 30 days, assuming that would 

be sufficient time for the docket room to provide the documents per the email we had received. 

(Appendix D). It was then, in response to our second request, that we received an informal email 

response advising that EPA had changed its policy and would no longer provide copies of 
188

rulemaking documents via email or mail; this, too, is included in email correspondence contained 

in Appendix D.

Subsequently, on October 25, 2011, twelve days after our original document request was 

submitted to EPA, PCA received a letter from EPA responding to our second request for an 

extension of time based on our still-pending document request, which formally turned down both 

our request to receive the NODA documents we had requested by email or mail and also the 30-

day comment period extension we had also requested. EPA’s response is included with these 

comments as Appendix E. [Footnote 56: It is noteworthy that only EPA’s October 17, 2011 

response denying PCA’s request for 60-day extension of time has been placed into the docket. It 

was designated EPA-HQ-RCRA-2011-0392-0135. EPA’s October 25, 2011 response to our 

second request for an extension of the comment period based on our pending document request 

has not been inserted into the docket. It is for that reason that it is included here in these 

comments as Appendix D.]

As it relates to the applicability of EO 13563 to this rulemaking, the following excerpts from 

EPA’s October 25, 2011 letter, responding to our second request for an extension of the 

comment period and also to the our request for documents, are especially salient:

"While we appreciate your concern, EPA believes that the public has ready access to these 

materials through a variety of sources. The copyrighted materials referenced in the NODA are 

from widely available, common technical journals, EPA has provided the public with the 

information they would need to be able to access them electronically, through local libraries, or 

through purchase.

The majority of the articles you requested are from technical journals, such as those of the 

American Concrete Institute, ASTM, Energy Engineering, and Elsevier. A quick internet 

search of all fourteen of the documents you requested yielded links for seven of them. A list 

of the seven links is enclosed.

In addition, EPA expects that all of the materials are available through local libraries. Most 

libraries have access to the Online Computer Library Center, Inc. 

(http://www.oclc.org/us/en/default.htm) a nonprofit computer service and research organization 

whose systems help libraries of all types locate, acquire, catalogue, and lend library materials. 

Almost 26,000 libraries world-wide participate. This makes it easy for libraries to locate reports 

and periodical articles quickly. Journal articles, in particular, are usually obtained quickly, 

because the lending library just photocopies the article and sends it often via fax to the requesting 

library.

Finally, as you were informed in response to your request to obtain the documents, people in the 

Washington DC [sic] area can obtain access to copyrighted documents by visiting the RCRA 

docket at Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460.

We regret that the restriction established by copyright laws and the technical limitations of 

Regulations.gov effectively mean that the public cannot access these documents through a 

single website. However, given the variety of methods for accessing these documents available, 
189

and the absence of any information demonstrating that these methods have been ineffective, we 

do not believe that an extension of the comment period is warranted on this basis."

(Emphasis supplied.)

Although PCA eventually obtained the documents in question, by having to send a staff person 

over to the RCRA docket room, so we are therefore not contesting either the inclusion of these 

documents in the NODA docket or EPA’s reliance upon those documents, the fundamental fact 

remains that EPA has not been transparent in this NODA docket. EPA’s correspondence 

overlooks the fact that the restrictions on use and dissemination of copyrighted materials can 

easily be overcome with the author’s permission. Thus, EPA has the option to make such a 

request on its own, or at the very least to request that commentators to public rulemakings 

provide such permission as a condition of a document being included in a docket.

However, requiring members of the public – regardless of their particular policy interest, where 

they may be located, and/or who they may be – to either go to public libraries and/or have to pay 

for copies of documents which a federal agency inserts into a rulemaking docket and is likely to 

rely upon, falls far short of the meeting the requirements and objectives of EO 13563 and EPA’s 

Plan to implement EO 13563, in particular Section 2 of the EO, which states:

"(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and 

other applicable legal requirements, shall endeavor to provide the public with an opportunity to 

participate in the regulatory process. To the extent feasible and permitted by law, each agency 

shall afford the public a meaningful opportunity to comment through the Internet on any 

proposed regulation, with a comment period that should generally be at least 60 days. To the 

extent feasible and permitted by law, each agency shall also provide, for both proposed and final 

rules, timely online access to the rulemaking docket on regulations.gov, including relevant 

scientific and technical findings, in an open format that can be easily searched and downloaded. 

For proposed rules, such access shall include, to the extent feasible and permitted by law, an 

opportunity for public comment on all pertinent parts of the rulemaking docket, including 

relevant scientific and technical findings."

Response: The Agency acknowledges and appreciates the comment, however, the ability or 

inability to obtain docket documents is outside the scope of this rulemaking. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-2

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2 10.4.3 2.2.8 2.2 4.1.1

Comment Excerpt Text:
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The following summarizes the specific issues we address in these comments:

- PCA’s comments in response to the NODA, including the detailed additional examples of 

stigma that we provide herein, focus on and are in direct response to specific documents, i.e., the 

Fortuna analysis (EPA-HQ-RCRA-2011-0392-0026) and the comments submitted by the Joint 

Advocates (EPA-HQ-RCRA-2011-0329-0119), that EPA has made a subject of this NODA.

- Former Administrator Browner’s sensitivity to avoid needlessly creating a stigma and instead 

regulate initially under subtitle D was, and still is sound policy: “If this conclusion [regulating 

under subtitle D] turns out not to be warranted, we would be inclined to re-examine our current 

decision.”

- Since submitting our initial comments, PCA has learned of a number of additional examples of 

stigma involving coal combustion residuals (CCRs) and the reuse of CCRs for beneficial 

purposes, which discredit and rebut the claims by the Joint Advocates and Fortuna that 

regulating CCRs under subtitle C will not stigmatize CCRs used for beneficial purposes.

- EPA’s Final Plan for conducting periodic retrospective reviews of existing regulations lends 

strong support for regulating CCRs under subtitle D and not under subtitle C.

- The results of a recent sociological study conducted by the University of New Hampshire 

corroborate the validity of industry’s concerns that CCRs used for beneficial purposes can be, 

and are being, stigmatized by the array of negative information being published and disseminated 

by the advocates of the subtitle C option, and by others, and that such information is fostering 

and reinforcing the public’s opposition to beneficial uses of CCRs generally and, in particular, 

belief that products containing CCRs should be avoided whenever possible.

- A recent article published by, and for, the property and casualty sector of insurance industry, 

calling CCRs the “next asbestos,” provides good and reliable evidence that CCRs have already 

been stigmatized.

- Comments submitted to this docket by opponents of the subtitle D options provide an excellent 

demonstration of the efforts taking place to smear and ultimately stigmatize CCRs and the reuse 

and recycling of CCRs.

- The campaign against the use of CCRs for sandblasting and roofing shingles provides a good 

example of how negative advertising is already being used and re-circulated in order to 

stigmatize products whose ingredients include CCRs.

- EPA should not treat a stigma report prepared for the leading opponents to the subtitle D option 

as “expert opinion” and/or give the report’s analysis and conclusions deference and/or preference 

over the stigma concerns and comments supporting stigma submitted by industry and others.

- EPA is required by law to consider the stigma effect that regulating CCRs under RCRA subtitle 

C would, or might, have on the current and future beneficial use of CCRs.
191

- Opponents of the subtitle D options have not demonstrated that the stigma concerns that have 

been presented to EPA are fallacious.

- Industry, state governments, and others have demonstrated in comments and with examples that 

the stigmatization of CCRs reuse has already begun to occur.

- Individual members of the U.S. Green Building Council’s (USGBC) “knowledgeable panel of 

professionals” have posted advice and recommendations on the USGBC website which are 

effectively lending unwarranted credence to the negative information and stigma being promoted 

about CCR reuses.

- Opponents of the subtitle D options have presented erroneous legal arguments regarding the 

Bevill factors and their irrelevancy to EPA’s final decision in this rulemaking.

- Opponents of the subtitle D options have effectively conceded that the potential for CCRs and 

their reuses to be stigmatized does exist.

- Claims that the courts disfavor stigma arguments have no merits.

- Opponents of the subtitle D options are engaging in a smear campaign that includes the 

widespread dissemination of false and misleading information, innuendo, and the raising of 

specious issues, all carefully crafted to inflame the public and instill public fear of CCRs and 

virtually all reuses of CCRs.

- Opponents of the subtitle D options erroneously and disingenuously argue that if a particular 

reuse of CCRs might be “dangerous” it cannot be “beneficial.”

- Opponents of the subtitle D options have sought to demonize all unencapsulated uses of CCRs, 

and do so without any consideration of whether appropriate control measures could be put into 

place or if a particular use is minimal.

- Opponents of the subtitle D options have cited research results for erroneous propositions 

and/or out of context in order to promote public fear of, and opposition to, encapsulated reuses of 

CCRs generally.

- Opponents of the subtitle D options have cited examples of “miscellaneous” reuses of CCRs 

that they know, or at the very least should know, are not relevant to this rulemaking, in order to 

stimulate public doubt and fear about CCR recycling and reuse and thus foster public opposition 

to the use of coal as an industrial fuel source.

- The negative comments and advocacy tactics being used by opponents of the subtitle D options 

will be a direct cause of the decrease in the reuse and recycling of CCRs that will occur in the 

event CCRs are regulated under subpart C.

- The public education program that opponents of the subtitle D options advocate will be 

incapable of overcoming the stigma and fear of CCR reuses that those opponents have already 
192

generated and are continuing to promote.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is 

also referred to the Volume 12 of the Response to Comment document for additional detail on 

beneficial use aspects of this rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-8

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3 2.2.8 2.2

Comment Excerpt Text:

B. Comments submitted to the docket present erroneous legal arguments regarding the Bevill 

factors and their relevancy to EPA’s final decision in this rulemaking. In comments submitted by 

Joint Advocates (EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources 

Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and 

Physicians for Social Responsibility) the following claims have been made: “While the Bevill 

factors arguably require EPA at least to consider stigma, the Bevill factors do not govern EPA’s 

final decision on its proposed rule,” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPAHQ-RCRA-2009-0640-10495.1 at 122), and that, “[e]ven if the stigma concerns raised by 

industry were legitimate . . . they would not provide a valid basis for declining to regulate coal 

ash under RCRA Subtitle C.” Id. The Joint Advocates further assert, as Fortuna did in his 

analysis: “The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is 

directly on point.” EPA-HQ-RCRA-2011-0392-0119 at 123 (previously EPA-HQ-RCRA-2009-

0640-10495.1 at 123). PCA disagrees.

The above-quoted claims present the Joint Advocates’ legal assertions relating to the scope and 

manner of EPA’s rulemaking authority under the Bevill Amendment. As such, if these assertions 

are correct, they would control whether, when, and how, the issue of stigma and, in particular, 

the presentations of factual examples of stigma, can be considered by EPA in the course of this 

rulemaking. Under the Joint Advocates’ theory, industry’s factual presentations of examples of 

stigma would have no relevancy to EPA’s decision to adopt the subtitle C option, because “the 

Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA-HQ-RCRA-2011-

0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 122). While PCA 

disagrees with the Joint Advocates, if it is assumed they are correct for sake of argument, it must 

also be assumed that the Joint Advocates would have presented this legal argument at the 

beginning of their comments addressing stigma, because the existence of such clear-cut legal 

restrictions on EPA’s authority would supersede EPA’s consideration of stigma and other 

matters of fact and would have avoided any need for EPA, or the Joint Advocates, to address 

stigma at all. Clearly that would be the logical and most expedient thing to do. Thus, if HWTC 
193

applies and is as “directly on point” as they claim, the Joint Advocates would only have needed a 

few paragraphs, or perhaps only a footnote, to dispose of the stigma issue and EPA’s 

consideration of stigma.

The Joint Advocates did not present their legal argument upfront, however. In fact, their legal 

arguments do not even begin until page 122 of their comments, i.e., 11 pages into their 

comments’ discussion of stigma.

Moreover, the Joint Advocates discussion of stigma in their comments was not limited to just a 

few paragraphs, or a footnote. Rather, the Joint Advocates’ initial, as well as their primary, focus 

on stigma deals with matters involving facts. Beginning on page 111 of their comments, and 

ending on page 153, they present a lengthy dissertation on why industry’s claims are, among 

things, “speculative,” EPA-HQ-RCRA-2011-0392-0119 at 114 (previously EPA-HQ-RCRA2009-0640-10495.1 at 114), and amount to nothing more than industry’s presentation of 

“alarmist stigma arguments” that should not be given credence. EPA-HQ-RCRA-2011-0392-

0119 at 127 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 127).

PCA believes it is significant that the Joint Advocates felt it was necessary to devote more than 

41 pages of their comments to the issue of stigma, when, according to their legal theory, virtually 

all of that discussion should have been superfluous. It is also significant that the Joint Advocates 

felt the need to commission and pay Fortuna to prepare his stigma report, which they appended 

to their comments as Appendix N. Clearly, the Joint Advocates’ actions speak much louder than 

their words. Clearly too, the Joint Advocates demonstrate they have no confidence in the merits 

and correctness of their legal argument. As we explain below, they have good reason.

Earlier in these NODA comments we demonstrated that the DC Circuit’s decision in HWTC is 

neither on point nor relevant to this rulemaking. PCA does not feel it is necessary to repeat that 

discussion here and we therefore refer EPA back to pages 9-11 of these NODA comments, supra.

However, PCA will address here another legal argument that was also raised in the Joint 

Advocates’ comments, which is based on their flawed interpretation of the Bevill Amendment 

and its interplay with 42 U.S.C. § 6921. According to the Joint Advocates:

While EPA must determine whether to promulgate regulations based on consideration of the 

Bevill factors, once it has made the decision to regulate, the ordinary listing factors apply. This 

makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat 

RCRA’s overarching purpose to regulate coal ash less protectively than the statute and 

implementing regulations require. Because none of the relevant provisions of the Bevill 

Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, 

EPA must make a final listing decision based on the regulatory listing criteria, which do not 

include stigma or even encouragement of reuse as a factor.

EPA-HQ-RCRA-2011-0392-0119 at 124 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 

124).

Based on the Joint Advocates’ theory, five out of the eight individual Bevill factors would be 
194

rendered nugatory and, as a result, EPA’s consideration of those factors would be superfluous.

- Factor 1: “the source and volumes of such materials generated each year;”

- Factor 5: “alternatives to current disposal;”

- Factor 6: “the cost of such alternatives;”

- Factor 7: “the impact of those alternatives on the use of coal and other natural resources;”

- Factor 8: “the current and potential utilization of such materials.”

According to the Joint Advocates’ statutory analysis, therefore, while acknowledging the 

obvious fact that the Bevill Amendment directs EPA to analyze such factors, they essentially 

argue that none of these five factors is relevant to EPA’s regulatory decision, because “the Bevill 

factors do not govern EPA’s final decision on its proposed rule.” EPA-HQ-RCRA-2011-0392-

0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 122).

In other words, the Joint Advocates argue that the Bevill Amendment imposed what amounts to 

an “all-or-nothing” scheme for regulating Bevill wastes. Under this theory, if CCRs need to be 

regulated, they must be regulated under subtitle C, or they cannot be regulated at all. Therefore, 

according to their theory, if, after considering the Bevill factors, EPA determines that CCRs 

should not be regulated under subtitle C, EPA would be prohibited from regulating CCRs under 

RCRA subtitle D, because “the Bevill factors do not govern EPA’s final decision on its proposed 

rule.” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 

at 122).

To put this into perspective, under the Joint Advocates’ theory, if EPA determines that the 

unregulated disposal of CCRs poses a potential danger to human health and the environment 

(Bevill factor 3), but also determines that CCRs should not be regulated under subtitle C, 

because doing so would reduce current and potential future reuse and recycling of CCRs (Bevill 

factors 7 and 8) and increase landfill disposal, EPA could not regulate CCRs under subtitle D, 

even if the risk to public health and the environment could be appropriately addressed under 

subtitle D, and the amount of CCRs being disposed of in landfills would be significantly 

decreased. The Joint Advocates’ “all-or-nothing” construction of the statute is nonsensical. It 

would be extremely short-sighted, and arbitrary, for EPA to adopt the Joint Advocates’ “all-ornothing” theory.

At a minimum, if the Joint Advocates’ statutory construction were adopted by EPA, the 

Agency’s analysis of at least five of the eight Bevill factors would be rendered effectively 

meaningless, because regardless of what information were developed under those factors, the 

information would have no bearing on EPA’s final regulatory decision. The Joint Advocates’ 

construction ignores a long line of Supreme Court decisions. As the Supreme Court opined in 

Duncan v. Walker, 533 U. S. 167, 174 (2001), for example: “It is 'cardinal principle of statutory 

construction’ that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, 

no clause, sentence, or word shall be superfluous, void, or insignificant." See, also United States 

v. Menasche, 348 U. S. 528, 538-539 (1955) (“It is our duty to give effect, if possible, to every 

clause and word of a statute [citation omitted] rather than to emasculate an entire section."); 

Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ("It is the duty of the court to give effect, if 

possible, to every clause and word of a statute, avoiding, if it may be, any construction which 
195

implies that the legislature was ignorant of the meaning of the language it employed.”).

The 2000 Bevill determination that Administrator Browner issued makes it quite clear that EPA 

is well aware of this basic canon of statutory construction. It is also abundantly clear from the 

2000 determination that the Agency has rejected the Joint Advocates’ “all-or-nothing” reading of 

the statute. Below we quote a number of statements from Administrator Browner’s 2000 

determination that speaks directly to the statutory construction that the Joint Advocates have 

advanced in their comments. Her statements support PCA’s reading of the statute and make it 

abundantly clear that the Joint Advocates’ interpretation of the statutory is wrong:

"Today’s decision was, in the Agency’s view, a difficult one, given the many competing 

considerations discussed throughout today’s notice. After considering all of the factors specified 

in RCRA section 8002(n), we have decided as discussed further below, that the decisive factors 

are the trends in present disposal and utilization practices (section 8002 (n)(2)), the current and 

potential utilization of the wastes (Section 8002 (n)(8), and the admonition against duplication of 

efforts by other federal and state agencies."

65 Fed. Reg. at 32215.

"We believe, however, for the reasons described below, the better approach at this time to 

ensuring adequate management of FFC wastes is to develop national regulations under subtitle D 

rather than subtitle C. EPA has reached this conclusion in large part based on consideration of 

“present disposal and utilization practices.” RCRA § 8002(n)."

65 Fed. Reg. at 32216.

EPA’s 2000 determination further makes clear that, in selecting which subtitle of RCRA CCRs 

should be regulated under, the factor of stigma does indeed provide a valid basis for EPA to 

decline to regulate CCRs under RCRA subtitle C. The following statement from Administrator 

Browner’s 2000 determination demonstrates this clearly, and unequivocally:

"We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) directs 

us to consider, among other factors, “the current and potential utilization of such materials.’’ 

Industry commenters have indicated that they believe subjecting any coal combustion wastes to a 

subtitle C regime would place a significant stigma on these wastes, the most important effect 

being that it would adversely impact beneficial reuse. As we understand it, the concern is that, 

even though beneficially reused waste would not be hazardous under the contemplated 

subtitle C approach, the link to subtitle C would nonetheless tend to discourage purchase 

and re-use of the waste. We do not wish to place any unnecessary barriers on the beneficial 

uses of these wastes, because they conserve natural resources, reduce disposal costs and 

reduce the total amount of waste destined for disposal. [Emphasis supplied] States and 

industry have also expressed concern that regulation under subtitle C could cause a halt in the 

use of coal combustion wastes to reclaim abandoned and active mine sites. We recognize that 

when done properly, minefilling can lead to substantial environmental benefits. EPA believes the 

contingent management scheme we discussed should diminish any stigma that might be 

associated with the subtitle C link. Nonetheless, we acknowledge the possibility that the 
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approach could have unintended consequences. We would be particularly concerned about any 

adverse effect on the beneficial re-use market for these wastes because more than 23 percent 

(approximately 28 million tons) of the total coal combustion waste generated each year is 

beneficially reused and an additional eight percent (nine million tons) is used for minefilling. 

EPA believes that such reuse when performed properly, is by far the environmentally preferable 

destination for these wastes, including when minefilled. Normally, concerns about stigma are 

not a deciding factor in EPA's decisions under RCRA, given the central concern under the 

statute for protection of human health and the environment. However, given our 

conclusion that the subtitle D approach here should be fully effective in protecting human 

health and the environment, and given the large and salutary role that beneficial reuse 

plays for this waste, concern over stigma is a factor supporting our decision today that 

subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D 

approach. [Emphasis supplied]

Additionally, in a 1993 regulatory determination, EPA previously addressed large volume coal 

combustion wastes generated at electric utility and independent power producing facilities that 

manage the wastes separately from certain other low volume and uniquely associated coal 

combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 regulatory determination 

maintained the exemption of these large volume coal combustion wastes from being regulated as 

hazardous wastes when managed separately from other wastes (e.g., in monofills). We intend 

that the national subtitle D regulations we develop for the coal combustion wastes subject to 

today’s regulatory determination will also be applicable to the wastes covered in the 1993 

regulatory determination for the reasons listed below, so that all coal combustion wastes are 

consistently regulated for placement in landfills, surface impoundments, and minefills.

- The co-managed coal combustion wastes that we studied extensively in making today’s 

regulatory determination derive their characteristics largely from these large-volume wastes and 

not from the other wastes that are co-managed with them.

- We believe that the risks posed by the co-managed coal combustion wastes result principally 

from the large-volume wastes.

- These large-volume coal combustion wastes, account for over 20% of coal combustion wastes.

As we proceed with regulation development, we will also take enforcement action under RCRA 

section 7003 when we identify cases of imminent and substantial endangerment. We will also 

use Superfund remedial and emergency response authorities under the Comprehensive 

Environmental Response Compensation and Liabilities Act (CERCLA), as appropriate, to 

address damages that result in risk to human health and the environment.

However, as stated above, this decision was a difficult one and EPA believes that, absent our 

conclusions regarding the current trends in management of this waste, the waste might present 

sufficient potential threat to human health and the environment to justify subtitle C regulation. 

There are several factors that might cause us to rethink our current determination. First, and 

perhaps most importantly, if current trends toward protective management do not continue, EPA 

may well determine that subtitle C regulation is warranted for this waste. As we have stated, we 
197

do not believe the current gaps in the basic controls are acceptable, and our determination that 

subtitle C regulation is not warranted is premised to a large extent on our conclusion that subtitle 

D regulation will be sufficient to close these gaps. If this conclusion turns out not to be 

warranted, we would be inclined to re-examine our current decision."

65 Fed. Reg. at 32217-18.

In short, the following two conclusions regarding the applicability and application of the Bevill 

Amendment must be drawn from Administrator Browner’s 2000 determination. First, that the 

Bevill factors apply to the entirety of EPA’s regulatory decision regarding CCRs and not just to 

EPA’s determination whether CCRs should be regulated. Therefore, contrary to what the Joint 

Advocates’ comments contend, EPA’s application of the Bevill factors in this rulemaking should 

not be limited solely to the Agency’s decision whether to regulate to CCRs but also extends to 

EPA’s determination of how CCRs are listed, i.e., whether CCRs should be regulated under 

RCRA subtitle C or subtitle D. [Footnote 22: The Joint Advocates ignore the statutory 

construction the Agency adopted under former Administrator Browner. They instead assert, 

albeit erroneously: “Even if the stigma concerns raised by industry were legitimate – which they 

are not – they would not provide a valid basis for declining to regulate coal ash under RCRA 

Subtitle C.” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-

10495.1 at 122).] Second, Administrator Browner’s 2000 determination also made abundantly 

clear that the factor of stigma can indeed influence EPA’s decision whether to CCRs should be 

regulated under RCRA subtitle C or subtitle D. Based on Administrator Browner’s 2000 

determination, if regulating CCRs under subtitle C could, in fact, cause a stigma, the existence of 

that possibility will suffice to provide EPA with a valid basis to decline to regulate CCRs under 

subtitle C.

Accordingly, and contrary to the comments submitted by the Joint Advocates, the examples of 

stigma that industry provides bear directly upon EPA’s decision whether it would be better to 

regulate CCRs under RCRA subtitle D, i.e., to decline to regulate them under subtitle C. 

Although PCA provided a number of examples of stigma in its original comments, because of 

the comments submitted by the Joint Advocates, and by Fortuna, we feel a need to submit 

additional examples of stigma that we learned of since submitting our original set of comments.

As further rebuttal to the comments of the Joint Advocates and also Fortuna, PCA provides a 

detailed discussion of additional examples of stigma in Section E of these NODA comments, 

below.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is 

also referred to the Volume 12 of the Response to Comment document for additional detail on 

beneficial use aspects of this rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0243-3

Organization1:DC Goss LLC
198

Commenter1:David Goss, Consultant

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2 10.4.7

Comment Excerpt Text:

As was done in the EPA’s efforts leading up to the issuance of the “Final Determination” in May 

of 2000, a thorough review of beneficial use information submitted will put to rest concerns 

about using CCRs in construction, agriculture and commercial applications. In May 2000, the 

EPA clearly stated that they reached their determination that beneficial uses do not present a 

significant risk to human health and the environment after their collection and analysis of 

information available. If the EPA chooses not to conduct this review, the stigma created by the 

proposed rulemakings remains, inferring that CCRs are not safe to use because the EPA does not 

know if they are safe (since no review of the benefits - or risk - was undertaken). Furthermore, in 

May 2000 the EPA stated that although some commenter’s disagreed with the EPA’s conclusion 

on beneficial use of CCRs in agriculture (for example), no data or other support was provided 

(by these commenter’s), nor was any information provided that showed risk or damage was 

associated with this application. I would argue that unless the EPA has hard evidence that there 

are now examples of damage when CCRs are used beneficially, they have an obligation to 

reaffirm the Agency’s position in 2000. This should be done through a review of the data 

submitted on beneficial use as part of the comments received on the rulemaking.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is 

also referred to the Volume 12 of the Response to Comment document for additional detail on 

beneficial use aspects of this rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0248-10

Organization1:Headwaters Resources, Inc.

Commenter1:William Gehrmann III

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2 3.1.2

Comment Excerpt Text:

In sum, although Headwaters does not believe EPA can reverse its 2000 determination to 

regulate CCRs under Subtitle D, to the extent EPA goes forward with this rulemaking, it is 

entirely proper for EPA to use the data and information relating to the beneficial use of CCRs 

that EPA received during the public comment period in developing the final rule. Indeed, EPA 

must consider such comments under the Bevill Amendment, APA, and Executive Orders 13563 

and 12866. Further, as detailed in its previously submitted comments, and in these additional 
199

comments regarding the beneficial use impacts, Headwaters urges EPA not to list disposed CCR 

as a special hazardous waste under Subtitle C, and to clarify some important issues regarding 

how the beneficial use rules will be applied under Subtitle D. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is 

also referred to the Volume 12 of the Response to Comment document for additional detail on 

beneficial use aspects of this rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0248-3

Organization1:Headwaters Resources, Inc.

Commenter1:William Gehrmann III

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2 2.2.8 10.2.2

Comment Excerpt Text:

I. EPA Is Required to Consider the Beneficial Use Data and Information Under the Bevill 

Amendment 

As the Utility Solid Waste Activities Group ("USWAG") explained in its comments on the 

proposed rule, [Footnote 1: Headwaters incorporates by reference those portions of USWAG's 

comments regarding the Bevill Amendment requirements and process, found at pages 27-41. 

Comments of The Utility Solid Waste Activities Group, The Edison Electric Institute, The 

American Public Power Association, and The National Rural Electric Cooperative Association 

on Hazardous and Solid Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule, Docket 

No. EPA-HQ-RCRA-2009-0640, at 27-41 (Nov. 19, 2010), available at www.regulations.gov.] 

EPA does not have authority to undertake this rulemaking because EPA properly decided to 

regulate CCRs under Subtitle D, rather than Subtitle C, in its 2000 determination--a 

determination which EPA cannot now reverse. Headwaters agrees with this point. Further, as 

USWAG also stated and as we also agree, even if we assume that somehow EPA could now 

legally reverse its final 2000 regulatory determination for CCRs, EPA could only do that if it 

were to follow the Bevill amendment procedures set forth in the statute for regulating disposed 

CCRs as hazardous waste. See 42 U.S.C. §§ 6921(b)(3)(A) and (C), and 6982(n). As part of 

these procedures, EPA must "conduct a detailed and comprehensive study and submit a report on 

the adverse effects on human health and the environment, if any, of the disposal and utilization 

of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other 

byproduct materials generated primarily from the combustion of coal or other fossil fuels." 42 

U.S.C. § 6982(n). This study must include a detailed analysis and consideration of a number of 

factors: 
200

(1) "the source and volumes of such material generated per year"; 

(2) "present disposal and utilization practices"; 

(3) "potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials"; 

(4) "documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved"; 

(5) "alternatives to current disposal methods"; 

(6) "the costs of such alternatives"; 

(7) "the impact of those alternatives on the use of coal and other natural resources"; and 

(8) "the current and potential utilization of such materials." 

42 U.S.C. § 6982(n). Factors (2) ("present disposal and utilization practices") and (8) ("the 

current and potential utilization of such materials") specifically relate to beneficial use of CCRs. 

Thus, under the Bevill Amendment, EPA is required to consider data and other information 

relating to beneficial use of CCRs in any rulemaking effort that could result in greater regulation 

of CCRs. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. The commenter is 

also referred to the Volume 12 of the Response to Comment document for additional detail on 

beneficial use aspects of this rule.

Comment Number: TRANS-CHI-0066-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In fact, even EPA agreed that hazardous waste regulation will result in excessive and 

unnecessary regulation. In its final regulatory determination in 2000, EPA concluded that 

hazardous waste regulation was not warranted for coal ash, and the Agency found that the 

inflexible nature of the federal hazardous waste program would result in excess costs and unduly 

burdensome regulations for coal ash. Let me quote EPA on this point: A Subtitle C system would 

require coal combustion waste units to obtain a RCRA Subtitle C permit (which would 

unnecessarily duplicate existing State requirements) and would establish a series of waste unit 

design and operating requirements for those wastes, which would generally be in excess of 

requirements to protect human health and the environment...Since [coal ash] sites vary widely in 

terms of topographical, geological, climatological, and hydrological characteristics (e.g., depth to 

groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes 

potential to leach into the groundwater and travel to exposure points is linked to such factors, it is 
201

more appropriate for individual States to have the flexibility necessary to tailor specific controls 

to the site or region specific risks posed by these waters.

Frankly, we couldn't have said it better and nothing has changed since issuance of that 

determination to alter this conclusion

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: TRANS-CHI-0125-2

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

In fact, there are some misinterpretations about determinations about coal ash in the past. In 

1993, when the EPA made a determination for Subtitle D, they did state that the current disposal 

practices at the time could cause health and environmental problems in the future, and they have. 

In 2000, the determination, the press release from the EPA, there has been a whole drumbeat of 

letters talking about how the EPA determines D, EPA determined that. But here I'll take a quote 

from what they determined in the year 2000 and the quote is from their press release. Their press 

release states that "If the states and industry do not take steps to address these wastes adequately 

in a reasonable amount of time, and if the EPA identifies additional risk to public health, EPA 

will revisit this decision," and this revisiting of the decision is not any bit too soon

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: TRANS-CLT-0127-1

Organization1:Duke Energy

Commenter1:Chris Hallman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

Duke Energy strongly supports the development of Federal regulations for coal combustion 

residuals under RCRA's Subtitle D non-hazardous waste program. We believe that regulation 

under Subtitle C is unwarranted and we're not the only ones who think so. 

EPA's own significant study and past rulemaking process also supports this approach. The 
202

development of Subtitle D regulations would be the appropriate outgrowth of EPA's two reports 

to Congress and two final regulatory determinations under the Bevill Amendment declaring that 

CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. 

Throughout EPA's 20 years of study, it has consistently found that the Subtitle D approach, with 

active state involvement, was the appropriate regulatory course for CCRs. In addition, various 

state and federal agencies, members of academia, and many others have studied CCRs for nearly 

three decades. These entities evaluated CCRs for toxicity levels and found them to be well below 

the criteria that would require a hazardous waste designation. 

First in its 1993 CCR Regulatory Determination and again in its second report to Congress in 

1999, EPA concluded that RCRA Subtitle D is more appropriate for addressing the limited 

human health and environmental risks that may be associated with disposal of these wastes. 

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR regulatory 

determination, concluding that the Subtitle D regulations are the most appropriate mechanism for 

ensuring that CCRs disposed in landfills and surface impoundments are managed safely. EPA's 

decisive factors in reaching its final determination that CCRs do not warrant regulation as a 

hazardous waste include one, CCRs rarely exhibit a hazardous waste characteristic; two, trends 

demonstrate CCR disposal and utilization practices are improving; and three, the current and 

potential beneficial use of CCRs are important advantages

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: TRANS-LVL-0032-1

Organization1:Kentucky Department of Environmental Protection

Commenter1:Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

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

management and beneficial reuse of coal combustion residuals within the state. We believe that 

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

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

Electrical generation in Kentucky uses approximately 42 million tons per year. Approximately 

10 million tons per year of CCR is generated in Kentucky. 

EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion 

waste are high volume and low hazard and do not warrant regulation under Subtitle C. EPA 

regulatory findings published in 1993 and 2000 indicated that these wastes do not warrant 

regulation under Subtitle C as well. However, EPA's proposed rule is not consistent with those 

previous conclusions and the state does not see a technical basis for EPA's change of course in 

this proposed rule

Response: The Agency acknowledges and appreciates the comment. The commenter is 
203

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: TRANS-LVL-0045-2

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Certain activist groups are alleging dozens of new damage cases, including some that are at Duke 

Energy facilities. In its final May 2000 regulatory determination concluding that CCRs do not 

warrant Subtitle C regulation, a close examination of the facts reveals many flaws in the recent 

allegations made by activist groups regarding additional damage cases. Many of the assertions 

are based on extremely flimsy evidence, with unfounded conclusions. EPA cannot rely on these 

assertions in any final rulemaking without conducting its own factual, independent review of the 

sites and following for -- and allowing for public notice and comment on their findings

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

referred to discussions on damage cases and EPA analyses in Units IV and XI of the preamble to 

this final rule.

Comment Number: TRANS-LVL-0062-1

Organization1:Duke Energy

Commenter1:David Weiss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

We believe that regulation under Subtitle C is unwarranted both environmentally and 

economically, but Duke Energy strongly supports the development of reasonable federal 

regulations for coal-combustion residuals under EPA's Subtitle D non-hazardous waste program. 

And we are not the only ones who think so. EPA's own previous studies and past rule-makings 

also support this approach. 

The development of Subtitle D regulations would be appropriate outgrowth of EPA's two reports 

to the Congress and two final regulatory determinations under the Bevill Amendment declaring 

that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. 

Throughout EPA's 20 years of study, it has consistently found that Subtitle D approach with 

active state involvement was the appropriate regulatory course for CCRs. Various state and 

federal agencies, universities, and others have studied CCRs for nearly three decades. These 
204

entities evaluated CCRs for toxicity levels and found them to be well below the criteria that 

would be a required hazardous waste designation. First in its 1993 regulatory determination, and 

then again in its second report to Congress in 1999, and then again in 2000, EPA concluded that 

Subtitle D is more appropriate for addressing the limited human health and environmental risk 

that may be associated with the disposal of these wastes. 

The factors that EPA used in reaching its final determination that CCRs do not warrant 

regulation as hazardous waste include (1) CCRs rarely exhibit a hazardous waste classification; 

(2) recent trends demonstrate CCR disposal and utilization practices are improving; and (3) the 

current and potential beneficial use of CCRs are important advantages

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Section 2.1.4 - 1993 Regulatory Determination (35136-35137)

Total Number of Submissions: 43

Total Number of Comments: 52

Comment Number: EPA-HQ-RCRA-2009-0640-04138-3

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion 

wastes are high volume and low hazard and do not warrant regulation under Subtitle C. EPA 

regulatory findings published in 1993 and 2000 indicate that these wastes “do not warrant 

regulation under Subtitle C.” However, EPA’s proposed rule is not consistent with those 

previous conclusions and the state does not see a technical basis for EPA’s change of course in 

this proposed rule. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and to defer the Bevill Regulatory Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06196-13

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive
205

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Bevill Exemption is based on EPA’s belief, in 1993 that, “human populations generally are 

not directly exposed to the groundwater in the vicinity of coal-fired utility waste management 

sites, public drinking water intakes are usually at least several kilometers from the sites” (58 FR 

42468). That is not the case in Puerto Rico.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and to defer the Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-06196-16

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

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

uncontrolled manner.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and to defer the Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-3

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion 

residuals are high volume and low hazard and do not warrant regulation under Subtitle C. EPA 

regulatory findings published in 1993 and 2000 indicate that these wastes "do not warrant 

regulation under Subtitle C." However, EPA's proposed rule is not consistent with those previous 

conclusions and the state does not see a technical basis for EPA's change of course in this 

proposed rule.
206

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and to defer the Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-2

Organization1:MidAmerican Energy Holdings Company (MidAmerican)

Commenter1: Cathy S. Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

CCR Does Not Warrant Hazardous Waste Regulation

The EPA has a long history of assessing the environmental risks posed by CCR. Over a period of 

nearly 30 years, the EPA has consistently and unequivocally reported both to the U.S. Congress 

and the general public that CCR does not exhibit hazardous waste characteristics. In 1976, 

Congress enacted RCRA to regulate the disposal of a growing volume of municipal and 

industrial wastes. Members of Congress recognized the public policy implications of this 

legislation on the nation’s energy independence and expressed concern that RCRA would create 

an incentive for electric utilities to switch from domestic coal to foreign oil. To address those 

concerns, Congress amended RCRA in 1980 (hereafter “Bevill Amendment”) to single out CCR 

for special consideration and required the EPA to demonstrate that the regulation of CCR would 

not discourage its beneficial reuse by imposing unnecessary regulatory costs specifically related 

to disposal. The Bevill Amendment excluded CCR from regulation as a hazardous waste under 

RCRA Subtitle C and prescribed a series of statutorily defined environmental and economic 

assessments that the EPA was required to undertake prior to regulating CCR.

Over the course of the next two decades the EPA worked to implement the Bevill Amendment 

requirements by conducting the statutorily required environmental and economic assessments of 

CCR. The EPA issued its first reported to Congress in 1998 and, utilizing its own, wellestablished test methodologies, concluded that large volume CCR – fly ash, bottom ash, boiler 

slag, and flue gas desulfurization wastes – did not exhibit hazardous characteristics and should 

not be regulated as a hazardous waste under Subtitle C. The EPA’s subsequent 1993 Regulatory 

Determination reaffirmed the determination that large volume CCR was not a hazardous waste. 

Following the 1993 regulatory determination, the EPA began work on assessing low volume 

CCR. The EPA reported to Congress in 1999 that low volume CCR also did not warrant 

regulation as a hazardous waste under Subtitle C. The EPA final Regulatory Determination in 

2000 confirmed the 1999 assessment. The EPA’s current proposal to regulate CCR as a 

hazardous waste under RCRA Subtitle C would be contrary to and inconsistent with EPA’s own 

findings, test methodologies, the law, and the regulatory construct, based on nearly 30 years of 

assessment and analysis without any additional or scientifically-based evidence that CCR 

exhibits hazardous characteristics. EPA should consider regulation of CCR as hazardous only 
207

those materials that are hazardous (the exception) rather than regulating all CCR as hazardous 

(the rule).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and to defer the Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-6

Organization1:MidAmerican Energy Holdings Company (MidAmerican)

Commenter1: Cathy S. Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

3. One Size Doesn’t Fit All – As reflected in the Bevill Regulatory Determination, an inflexible, 

one-size-fits-all Subtitle C hazardous waste program is not appropriate as it fails to account for 

the diverse nature of CCR disposal facilities. EPA previously explained as part of the Bevill 

Regulatory Determination Federal Register notice that “...since sites vary widely in terms of 

hydrological characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking 

water sources, soil type) and the wastes’ potential to leach into the groundwater and travel to 

exposure points is linked to such factors, it is more appropriate for individual States to have the 

flexibility necessary to tailor specific controls to the site...specific risks posed by these wastes.” 

[FN 3: See 58 Federal Register at 41477] The inflexible, one-size-fits-all nature of the Subtitle C 

program does not take into consideration geographical and other site specific factors that affect 

environmental and safety risks, nor does it take into consideration that not all CCR materials are 

created equally.

It is, therefore, paramount that any final CCR rule account for diverse site specific factors, 

including geologic conditions, and proximity to groundwater and/or surface water. The diverse 

nature of CCR disposal facilities is demonstrated by MidAmerican’s operating entity, PacifiCorp 

which operates coal-fueled generating facilities in Wyoming that have no private residences (or 

any other development) within many miles of the facilities. Obviously, the distance to drinking 

water sources for human or other consumption will be inherently different for these PacifiCorp 

facilities when compared to electric generating plants in more densely populated regions of the 

country, including the east coast. Likewise, PacifiCorp operates a coal-fueled electric generating 

facility in Wyoming where groundwater studies have shown that the water in the ash 

impoundments is of a higher quality than the area’s natural groundwater. It is important for the 

EPA to account for these site specific differences in a final rulemaking. Unfortunately, the 

inflexibility of the Subtitle C program will fail to account for these diverse factors and will not 

allow individual states the flexibility necessary to tailor site specific controls to site-specific 

risks.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 
208

subtitle D of RCRA and to defer the Bevill Regulatory Determination. The commenter is also 

referred to Unit V of the preamble for a discussion of the subtitile D approach. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-35

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 3.1.2

Comment Excerpt Text:

A. Subtitle C Regulation Is Technically Not Applicable to CCBs and Would Be Prohibitively 

Expensive and Counterproductive, Without Commensurate Human Health or Environmental 

Benefits. 

EPA seeks comment on regulation of CCBs destined for disposal in landfills or received in 

surface impoundments as listed “special wastes” under EPA’s Subtitle C proposal. This proposal 

is both technically and legally flawed. 

In accordance with 40 C.F.R. 261.11(a)(3), EPA may list a waste as hazardous if, after 

evaluating ten individual criteria, EPA concludes that “the waste is capable of posing a 

substantial present or potential hazard to human health or the environment when improperly 

treated, stored, transported or disposed of, or otherwise managed.” [Footnote 105: 75 Fed. Reg. 

at 35166.] For a number of reasons, EPA has failed to meet this necessary standard. Among 

those reasons are (1) the scope of the proposed listing is overly broad; (2) EPA has not identified 

or evaluated other federal and state regulatory programs applicable to CCBs as required by the 

listing criteria; and (3) EPA’s draft screening analysis involving potential risks for CCB fugitive 

dust emissions is overly conservative. In addition, Southern Company agrees with and adopts 

USWAG’s comments regarding EPA’s improper characterization of CCBs as a “special waste.” 

[Footnote 106: See USWAG Comments, supra note 41, at Part VI.] 

In the Bevill Amendment, Congress directed EPA to make a determination regarding whether 

CCBs warrant regulation under RCRA’s Subtitle C hazardous waste program. [Footnote 107: 42 

U.S.C. 6921(b)(3)(A)(ii); 40 C.F.R. 261.4(b)(4). ] EPA completed the statutorily mandated 

Bevill determination process for CCBs considering earlier Reports to Congress, Regulatory 

Determinations, and input from numerous stakeholders after years of study, and EPA concluded 

in its final Regulatory Determination that CCBs do not warrant regulation under RCRA’s 

Subtitle C hazardous waste regulations. [Footnote 108: See generally 65 Fed. Reg. 32214 (May 

22, 2000). In its first CCB Regulatory Determination in 1993, EPA concluded that, given that 

“the potential for damage from these wastes is most often determined by site- or region-specific 

factors,” the “current State approach to regulation” under Subtitle D of RCRA is most 
209

appropriate. 58 Fed. Reg. 42466 (Aug. 9, 1993). EPA specifically explained, “[I]t is unlikely that 

Subtitle C would effectively address the problems associated with the four large-volume fossilfuel combustion wastes [CCBs] without imposing unnecessary costs.” Id. at 42477. EPA stated 

again in 1999 that RCRA “Subtitle C is inappropriate to address any problems associated with 

disposal of these wastes and that the continued use of site and region specific approaches by the 

states [under RCRA Subtitle D] is more appropriate for addressing the limited human health and 

environmental risks that may be associated with disposal of these wastes.” EPA, REPORT TO 

CONGRESS: WASTES FROM THE COMBUSTION OF FOSSIL FUELS 3-5 (1999). EPA 

reaffirmed that CCBs do not warrant hazardous waste regulation in its 2000 Regulatory 

Determination, concluding that “the [S]ubtitle D regulations are the most appropriate mechanism 

for ensuring that [CCBs] disposed in landfills and surface impoundments are managed safely.” 

65 Fed. Reg. at 32221.] Instead, EPA determined that regulation of CCBs as non-hazardous 

waste under Subtitle D of RCRA would be fully effective in protecting human health and the 

environment.[Footnote 109: 65 Fed. Reg. at 32221.] EPA’s conclusions were based in substantial 

part on the fact that CCBs do not exhibit the “toxicity” characteristic (or any of the other 

characteristics of Subtitle C waste), based on the TCLP, which EPA uses to determine toxicity 

for purposes of RCRA. [Footnote 110: See 75 Fed. Reg. at 35137-38.] 

Southern Company agrees with EPA’s prior determinations that CCBs do not warrant regulation 

as a hazardous waste under RCRA Subtitle C. The information gathered since EPA’s May 22, 

2000, Regulatory Determination does not warrant any different conclusion today. Regulation of 

CCBs as a hazardous waste under RCRA Subtitle C would create inappropriate and unnecessary 

regulatory compliance burdens, including Subtitle C hazardous waste storage, treatment, 

disposal, corrective action, and unit closure requirements. For example, regulation of CCBs 

under Subtitle C would result in major disposal capacity shortfalls because many CCB 

generation facilities would be unable to comply with the regulations in a timely and 

economically feasible manner. EPA concluded in 1993 that “the potential for damage from these 

wastes is most often determined by site- or region-specific factors.” [Footnote 111: 58 Fed. Reg. 

at 42466.] Therefore, imposing Subtitle C regulations would eliminate states’ flexibility to take 

the most effective siteand region-specific approaches to CCB management by imposing uniform 

and often inappropriate federal hazardous waste standards on this non-hazardous material. 

Moreover, implementing the Subtitle C proposal would be prohibitively expensive. By EPA’s 

own estimate, Subtitle C compliance costs for utilities would be at least three times higher than 

the “identical” controls under the Subtitle D proposal (average annual cost of $1.47 billion for 

the entire industry under the Subtitle C proposal versus $587 million under the Subtitle D 

proposal for the next 50 years). [Footnote 112: 75 Fed. Reg. 35128, 35213 (June 21, 2010).] EPA 

concedes that its estimate of Subtitle C costs does not include the costs for complying with 

certain significant components of the Subtitle C regulations, including the costs of facilities 

having to retrofit or upgrade CCB management units to meet the Subtitle C storage design 

operating standards. [Footnote 113: Id. at 35212.] Southern Company believes EPA’s estimate is

grossly understated. By comparison, Southern Company’s pre-screening costs of the proposed 

Subtitle C requirements are between $12.5 and $22 billion for the entire Southern Company 

system alone. 

In addition to agreeing with EPA’s prior determinations, Southern Company agrees with 
210

USWAG comments explaining that EPA cannot legally reverse its previous determinations that 

CCBs do not warrant regulation under Subtitle C.[Footnote 114: USWAG Comments, supra note 

41, at Part III. ]Specifically, Congress established a detailed process by which EPA could 

determine whether and how to regulate CCBs under RCRA Subtitle C. EPA has completed that 

statutory decision-making process—determining in its 2000 final CCB Regulatory 

Determination that CCBs do not warrant Subtitle C regulation—and RCRA does not authorize 

EPA to now reverse that final Regulatory Determination. It is a fundamental principle of 

administrative law that an agency’s authority to act must come directly from Congress and that 

absent that authority, an agency may not act. [Footnote 115: See, e.g., U.S. Telecom Ass’n v. 

FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). ] The Bevill Amendment contains no grant of 

authority for EPA to reverse a final regulatory determination that the agency has already properly 

reached pursuant to the Amendment’s prescribed procedures and deadlines. If EPA wishes to 

once more undertake the statutorily prescribed process for reaching a final Regulatory 

Determination for CCBs, it must obtain this authority from Congress. [Footnote 116: Southern 

Company supports USWAG’s comments on this issue. For further discussion, see USWAG 

Comments, supra note 41, at Part IV.] 

EPA is also considering defining CCBs as a “special waste” under the Subtitle C proposal. This 

designation would not ameliorate the consequences of Subtitle C coverage. As EPA notes, 

treatment of CCBs as a “special waste” would include regulation—

from the point of their generation to the point of their final disposition, including during and after 

closure of any disposal unit. This would include the generator and transporter requirements and 

the requirements for facilities managing CC[B]s, such as siting, liners (with modification), runon 

and run-off controls, groundwater monitoring, fugitive dust controls, financial assurance, 

corrective action, including facility-wide corrective action, closure of units, and post-closure care 

(with certain modifications). In addition, facilities that dispose of, treat, or, in many cases, store, 

CC[B]s also would be required to obtain permits for the units in which such materials are 

disposed, treated, and stored. [Footnote 117: 75 Fed. Reg. at 35133.] 

Designation of CCBs as either a hazardous waste or special waste under the Subtitle C proposal 

would effectively reverse decades of progress in the beneficial use of a valuable product. The 

potential benefits of the Subtitle C proposal are less than the potential benefits from either the 

Subtitle D proposal or a Subtitle D Prime approach. [Footnote 118: See id. at 35134 (Table 1).] 

Regulation of CCBs under Subtitle C would have even more substantial negative effects than 

regulation under Subtitle D or “D Prime,” including greater job losses and higher electric rates 

for consumers, without corresponding benefits to environmental protection. 

As discussed in Part II.A above, as among EPA’s three regulatory options, a modified Subtitle D 

Prime approach, properly developed with additional state regulatory oversight provisions, would 

be more flexible, practical, and effective than the Subtitle C proposal (or Subtitle D proposal). A 

modified Subtitle D Prime approach provides the same level of protection of human health and 

the environment with less duplication or preclusion of ongoing state and private efforts. 

Recognizing the importance of site- and region-specific controls, state agencies are better suited 

than EPA to administer any new requirements. Accordingly, for the reasons stated below, 

Southern Company recommends that EPA reject the inappropriate Subtitle C proposal
211

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and to defer the Bevill Regulatory Determination. The commenter is also 

referred to Unit V of the preamble for a discussion of the subtitle D approach. The commenter 

is also referred to Units IV and VI for a complete discussion of the beneficial use aspects of the 

rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06339-3

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.5

Comment Excerpt Text:

2) Subtitle C Regulation violates the clear language and the legislative purpose of the Bevill 

Amendment to RCRA In 1980, Congress amended RCRA with the passage of the Bevill 

Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste 

regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C 

regulation of CCRs and to promote their beneficial use. In fact, the sponsors of the Bevill 

Amendment specifically stated their concerns regarding the fate of beneficial use of CCRs under 

Subtitle C regulation of CCRs. For example, Representative Bevill stressed that a primary 

purpose of his amendment was to support the “national commitment to encourage reuse of such 

materials as fly ash.”[Footnote 16: 126 Cong. Rec. at 3362.] Representative Findley advised that 

if CCRs were regulated under Subtitle C, the “flourishing industry which recycles these 

byproducts would be gravely disrupted and possibly closed down.”[Footnote 17: Id. at 3363.] 

Representative Harley Staggers stated bluntly that regulation of CCRs as a hazardous waste 

“would run counter to one of the principal designs of [RCRA] – conservation of valuable 

material.”[Footnote 18: Id. at 3364-65.]

The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate 

CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to 

Congress on whether such regulation was warranted. With completion of the study and 

submission of the corresponding Report to Congress, the Bevill Amendment required EPA to 

make a final regulatory determination regarding whether CCRs should be regulated under 

Subtitle C.

The Bevill Amendment required the Agency to base this final regulatory determination “on 

information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings, 

and comment. . . .”[Footnote 19: RCRA § 8002(n), 42 U.S.C. § 6982(n).] EPA submitted its first 
212

Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue 

gas emission control waste generally do not exhibit hazardous characteristics under RCRA. 

Accordingly, EPA stated that it did not intend to regulate those four large-volume coal 

combustion waste streams. The initial report went on to encourage the utilization of coal 

combustion wastes to the extent that such utilization could be done in an environmentally safe 

manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion 

that hazardous waste regulation was not warranted for those four large-volume coal combustion 

waste streams.

In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a 

statutorily prescribed series of steps that involved congressional oversight marked by EPA’s 

submission of reports to Congress that would inform the relevant congressional committees of 

jurisdiction of the Agency’s preliminary recommendations. [Footnote 20: 58 Fed. Reg. at 

42477.]

The second Report to Congress, submitted in March 1999, again concluded that Subtitle C is 

inappropriate to address any problems associated with disposal of several other fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes and that “the 

continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily 

prescribed assessment and reporting process when it issued its final Regulatory Determination 

for all remaining fossil fuel combustion wastes, including CCRs managed with certain lowvolume wastes.[Footnote 21: See 65 Fed. Reg. at 32214.] Echoing its first Regulatory 

Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not 

warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that 

regulation as a non-hazardous solid waste under Subtitle D of RCRA would be appropriate when 

CCRs are disposed of in landfills or surface impoundments.[Footnote 22: Id.]

Because of their diverse natures, CCR disposal facilities are ill-suited to regulation under the 

Subtitle C hazardous waste program. In its final determination that CCRs should not be subject 

to Subtitle C regulation in 2000, EPA stated that “it is more appropriate for individual States to 

have the flexibility necessary to tailor specific controls to the site or region specific risks posed 

by these wastes.”[Footnote 23: See NRECA Comments to this 2010 Proposed Rule (citing 58 

Fed. Reg. at 41477).]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 
213

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06362-3

Organization1:

Commenter1:Bret Reid, P.E.

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

The EPA is also going against its own findings. In 1993 and again in 2000, the EPA found that 

coal ash "did not warrant regulation as a hazardous waste." 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06446-1

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

II. Background of the Bevill Amendment

In 1980, Congress amended (“RCRA”) with the passage of the Bevill Amendment to ensure that 

EPA would not inappropriately subject CCRs to hazardous waste regulation. The amendment 

was intended to avoid the excessive costs associated with Subtitle C regulation of CRs and to 

promote their beneficial use. The Bevill Amendment addressed these concerns by suspending 

EPA’s authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency 

completed a study and reported to Congress on whether such regulation was warranted. With 

completion of the study and submission of the corresponding Report to Congress, the Bevill 

Amendment required EPA to make a final regulatory determination regarding whether CCRs 

should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this 

final regulatory determination “on information developed or accumulated pursuant to [the RCRA 

§ 8002] study, public hearings, and comment. . . .” RCRA § 8002(n), 42 U.S.C. § 6982(n). In 

short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a 
214

statutorily-prescribed series of steps that involved congressional oversight marked by EPA’s 

submission of reports to Congress that would inform the relevant congressional committees of 

jurisdiction of the Agency’s preliminary recommendations.

III. Implementation of the Bevill Amendment

EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom 

ash, boiler slag, and flue gas emission control waste generally do not exhibit hazardous 

characteristics under RCRA. Accordingly, EPA stated that it did not intend to regulate those four 

large-volume coal combustion waste streams. The initial report went on to encourage the 

utilization of coal combustion wastes to the extent that such utilization could be done in an 

environmentally safe manner. Six months later, EPA reiterated in its first Regulatory 

Determination the conclusion that hazardous waste regulation was not warranted for those four 

large-volume coal combustion waste streams. 58 Fed. Reg. at 42477.

The second Report to Congress, submitted in March, 1999, again concluded that Subtitle C is 

inappropriate to address any problems associated with disposal of several other fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes and that “the 

continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorilyprescribed assessment and reporting process when it issued its final Regulatory Determination 

for all remaining fossil fuel combustion wastes, including CCRs managed with certain lowvolume wastes. See 65 Fed. Reg. at 32214. Echoing its first Regulatory Determination, EPA 

concluded that CCRs and other fossil fuel combustion wastes did not warrant regulation under 

RCRA’s Subtitle C hazardous waste program, determining instead that regulation as a nonhazardous solid waste under Subtitle D of RCRA would be appropriate when CCRs are disposed 

of in landfills or surface impoundments. Id.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06534-7

Organization1:Lafarge North America Inc.

Commenter1: Brian Gasiorowski on behalf of Craig S. Campbell

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

The current proposal for Subtitle C regulation, also contradicts EPA’s prior position as stated in 

the two prior Reports to Congress, which concluded that the regulation of CCRs is not 
215

warranted. EPA now claims to support an opposite conclusion – Subtitle C regulation – and the 

Report to Congress should be updated to reflect the basis of EPA’s current position. In addition, 

the public would then have the opportunity to peer review the updated information used by EPA 

in justifying Subtitle C regulation of CCRs. The seventeen “problem projects” should not be the 

basis for potentially destroying CCR utilization in the United States

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06827-2

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 3.1.2

Comment Excerpt Text:

II. The Subtitle C Option is Inconsistent with the Bevill Amendment

Briefly, the Bevill Amendment to RCRA was the direct result of Congress's concern that the 

U.S. Environmental Protection Agency might discourage the use of coal as one of the nation's 

primary sources of energy if it prematurely and inappropriately subjected CCRs to regulation 

under the hazardous waste provisions of RCRA Subtitle C. I Accordingly, when Congress 

enacted the Amendment into law in 1980, it effectively suspended the Agency's authority to 

regulate CCRs under Subtitle C until the Agency completed a study to determine whether in fact 

such regulation was warranted and submitted a report to that effect to Congress. The Amendment 

also required the Agency to make a "final regulatory determination" whether to subject CCRs to 

Subtitle C regulation following submission of the aforementioned report to Congress. In short, 

the Bevill Amendment was intended to address Congress's concern by cautioning the Agency not 

to impose unnecessary and costly regulations on those industries using coal to produce 

electricity. It also reflects Congress's concern that regulating CCRs under Subtitle C could 

discourage and perhaps end altogether the beneficial use of CCRs.

Thus, through the Bevill Amendment Congress singled out CCRs for special consideration by 

the Agency in determining whether, and how, to regulate them under RCRA, with Subtitle C 

regulation representing an option of last resort. The Agency could reach the decision to regulate 

CCRs under Subtitle C only after following a statutorily prescribed series of steps that involved 

congressional oversight marked by the Agency's submission of a report to Congress that would 

inform the relevant congressional committees of jurisdiction of the Agency's preliminary 

recommendation. The final regulatory determination was to be issued according to a statutorilyimposed deadline and based on public hearings and comments responding to the report to 

Congress.

Shortly after enactment of the Bevill Amendment and completion of the requisite study, the 

Agency began to prepare its report to Congress by dividing it into two phases. The I Ref. RCRA 

§ 300J(b)(3)(A), 42 U.S.C. § 692J(b)(3)(A). initial phase addressed the management of CCRs 
216

independent of any other wastes that are generated by coal-fired power plants during the course 

of producing electricity. The second phase addressed CCRs that are co-managed with certain low 

volume wastes (i.e. boiler cleaning solutions, boiler blowdown, demineralizer regenerant, pyrites 

and cooling tower blowdown) that are routinely generated by those plants.

Pursuant to this two-phased approach, the Agency submitted its first report to Congress in 

March, 1988. In the report, the Agency concluded that CCRs that are managed independent of 

the aforementioned low volume wastes generally do not exhibit any of the hazardous 

characteristics under the current RCRA regulations and therefore do not warrant regulation under 

Subtitle C of RCRA. In August, 1993, the Agency published a final regulatory determination to 

that effect in which it reiterated that the regulation of CCRs under Subtitle C ofRCRA was not 

warranted.

Shortly after the August, 1993 final regulatory determination was published, the Agency began 

work on its second repOtt to Congress on CCRs that are co-managed with the aforementioned 

low volume wastes. In March, 1999, the Agency submitted its second report to Congress in 

which it concluded that CCRs when co-managed with those wastes do not warrant regulation 

under Subtitle C of RCRA. In May, 2000, the Agency published a final regulatory determination 

to that effect in which it reiterated that comanaged CCRs do not warrant regulation under 

RCRA's Subtitle C hazardous waste program. Instead, the Agency indicated that CCRs should 

more appropriately be regulated under the solid waste provisions of RCRA Subtitle D where they 

are disposed of in landfills or surface impoundments. 

In light of the above, the legal framework by which the two proposed primary regulatory options 

must be evaluated is the Bevill Amendment. It is OO&E's opinion that the proposed rule's 

Subtitle C option represents an impennissible reversal of the Agency's final regulatory 

determinations for CCRs. Specifically, the proposed Subtitle C option is in direct conflict with 

the plain language of the Bevill Amendment that established an unambiguous statutory process 

by which the Agency can determine to what extent CCRs should be regulated under RCRA and 

which does not provide a mechanism to reverse those determinations. Put another way, having 

completed the final regulatory determination process for CCRs in May, 2000 pursuant to a 

statutorily prescribed mandate, the Agency is not at liberty to undo that process. Even assuming 

arguendo that RCRA provides a mechanism for the final regulatory determinations to be 

reversed, the Agency would still be obligated to adhere to the process that Congress prescribed 

for making the original detenninations, including providing a report to Congress that sets forth its 

recommendation to reverse those determinations. In short, OO&E believes that the Agency has 

ignored the statutory process by including the Subtitle C option in the proposed rule.

While OO&E has several concerns with the Subtitle D option, it nevertheless represents a more 

appropriate regulatory structure under which the Agency could promulgate federal regulations 

for CCRs. Under the Subtitle D option, the Agency would not be attempting to reverse its final 

regulatory determinations for CCRs and run afoul of the statutory process established by 

Congress. Instead, by promulgating federal non-hazardous solid waste regulations for the 

disposal of CCRs under Subtitle D of RCRA, CCRs would remain classified as a non-hazardous 

solid waste and the Agency could develop nationwide self-implementing regulations for CCR 

disposal facilities

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
217

Comment Number: EPA-HQ-RCRA-2009-0640-06849-9

Organization1:Little Village Environmental Justice Organization (LVEJO)

Commenter1: Keith Harley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

U.S. EPA’s rulemaking “alternatives” fail to account for strict limits on its authority under 

RCRA in light of the Supreme Court’s decision in City of Chicago v. EDF. LVEJO asserts that 

U.S. EPA has significantly overestimated its authority under RCRA to exempt CCR, and the 

facilities that generate it, from Subtitle C. 

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

referred to Unit II of the preamble for a discussion of the Agency statutory authority. The 

commenter is also referred to Unit IV of today’s preamble for a discussion on our decision to 

regulate CCR under subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-12

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.1

Comment Excerpt Text:

EPA completed the Bevill regulatory process for CCRs in 2000; the statute does not authorize 

EPA to reverse that decision. EPA has completed the Bevill process pursuant to a judiciallyimposed deadline and determined, in accordance with the congressionally-mandated decisionmaking process, that CCRs do not warrant regulation under Subtitle C. The statutory decisionmaking process is complete and RCRA does not authorize EPA to decide to “take a second bite 

at the apple” and reverse its final CCR Regulatory Determinations in a manner of its own 

choosing. 

Congress established a detailed process by which EPA could determine whether and how to 

regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining 

that CCRs do not warrant regulation under RCRA Subtitle C, and concluded instead that CCRs 

warrant regulation under RCRA’s Subtitle D non-hazardous waste program. The statute does not 

contemplate, let alone authorize, EPA undertaking another round of the Bevill decision-making 

for CCRs. If it did, the statutory process and its associated deadlines for reaching a final 

Regulatory Determination would have no meaning, and EPA could continually change its mind 

in an abbreviated fashion, as illustrated by the proposed Subtitle C option. 
218

If EPA wishes to once more undertake the statutorily-prescribed process for reaching a final 

regulatory determination for CCRs, it must obtain this authority from Congress. If Congress 

were to grant EPA such authority, it would be reasonable to expect that Congress would establish 

new statutory deadlines and perhaps new and different statutory study factors for EPA to 

evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority 

from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory 

Determinations for CCRs. Therefore, EPA cannot legally pursue the Subtitle C option. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06868-1

Organization1:Cleco Corporation

Commenter1: Bill Matthews

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

Cleco finds the arguments in the USWAG Comments to be most compelling. One of the major 

items referred to throughout the USWAG Comments is the Bevill Amendment. A most 

interesting and accepted point drawn from the Bevill Amendment, the legislative history of the 

Amendment and court statements concerning the Amendment is that EPA cannot reverse it's 

CCR regulatory determinations, in 1993 and 2000, to regulate coal combustion residuals through 

the Subtitle D program. Cleco agrees with this deduction described in the USWAG Comments 

and urges EPA to comply with the Bevill Amendment requirements.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-2

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

A. The Rulemaking Record Supports The Subtitle D Option

At the outset, it is important to reiterate that the development of Subtitle D non-hazardous waste 
219

regulations for CCRs is fully consistent with the rulemaking record; in fact, it is the only lawful 

option available to the Agency. The development of Subtitle D regulations would be the 

appropriate outgrowth of EPA’s two Reports to Congress and two final Regulatory 

Determinations under the Bevill Amendment declaring that CCRs do not warrant hazardous 

waste regulation under RCRA Subtitle C, but rather should remain the province primarily of 

state regulatory programs under RCRA Subtitle D. Throughout its 20-year study and issuance of 

the required Reports to Congress and final CCR Regulatory Determinations, EPA has 

consistently found that the Subtitle D approach, with active state involvement, was the 

appropriate regulatory course for CCRs. In its first CCR Regulatory Determination in 1993, EPA 

concluded that, given that “the potential for damage from these wastes is most often determined 

by site- or region-specific factors,” the “current State approach to regulation” under RCRA 

Subtitle D is most appropriate. EPA echoed this finding in its second Report to Congress in 

1999, concluding once again that RCRA Subtitle C is inappropriate to address any problems 

associated with disposal of these wastes and that the continued use of site and region specific 

approaches by the states under RCRA Subtitle D is more appropriate for addressing the limited 

human health and environmental risks that may be associated with disposal of these wastes.

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR Regulatory 

Determination, concluding that the Subtitle D regulations are the most appropriate mechanism 

for ensuring that CCRs disposed in landfills and surface impoundments are managed safely. In 

addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that 

the decisive factors in reaching its final determination that CCRs do not warrant regulation under 

RCRA’s Subtitle C hazardous waste regulations were: (1) improving trends in present CCR 

disposal and utilization practices (per the Bevill study factor in 8002(n)(2)), (2) the current and 

potential utilization of CCRs (i.e., beneficial use), per the Bevill study factor in 8002(n)(8), and 

(3) Congress' admonition in the Bevill Amendment against duplication of efforts by other federal 

and state agencies.

In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to 

the 1999 Report to Congress, that stated “the utility industry has made significant improvements 

in its waste management practices over recent years and to similar record evidence that state 

[CCR regulatory] programs have, in fact, substantially improved over the last 15 years or so." 

EPA found that "the ability for most states to impose specific regulatory controls for coal 

combustion wastes has increased almost three-fold over the past 15 years”. EPA concluded that, 

with the exception of relatively few states, the regulatory infrastructure is generally in place at 

the state level to ensure adequate management of these wastes. Critically, this positive trend has 

continued, with EPA and DOE finding in their joint 2007 Report of state CCR controls that [t]he 

data and analyses documented in this report provide new information that appears to show 

improved management of CCWs in both landfills and surface impoundments

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-17

Organization1:Entergy Services, Inc.
220

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.3

Comment Excerpt Text:

In the event that Congress were to grant EPA the authority to undertake an additional regulatory 

determination for CCRs, Congress could establish new and different statutory deadlines and 

perhaps new and different statutory study factors for EPA to evaluate. Absent such authority 

from Congress, Entergy does not believe that EPA may alter its final 1993 and 2000 regulatory 

determinations for CCRs, nor pursue its Subtitle C proposed option.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-07047-4

Organization1:Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

EPA itself has determined on two occasions (1993 and 2000 Final Determinations) that CCR 

properties do not warrant their regulation as a hazardous waste. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-2

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.3

Comment Excerpt Text:

The proposed rule is illegal because it violates the Bevill Amendment to RCRA which

specifically limits EPA's ability to regulate CCR. EPA can consider CCR regulation only in 
221

extremely limited circumstances and only after extensive analysis of the science and risk issues 

associated with CCR disposal. On two prior occasions, in 1993 and 2000, EPA issued 

comprehensive reports pursuant to the Bevill Amendment regarding CCR and in both instances 

determined that CCR should not be regulated under Subtitle C. The 2000 determination noted the 

array of potential issues, but found that those issues did not justify or require the extreme cost 

and difficulty of regulating such a vast quantity of low risk material under Subtitle C.

As an initial matter, EPA's action here is illegal because EPA no longer has any authority to 

regulate CCR as a hazardous waste. Having submitted the required report and mage its 

determination that regulation of CCR as a hazardous waste is unwarranted, EPA is done. The 

Bevill Amendment has no language allowing EPA to revisit its determination. Unless or until 

Congress amends RCRA to grant EPA the authority to reconsider its 2000 findings, EPA has no 

authority to regulate CCR as a hazardous waste.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08229-5

Organization1:Alabama Public Service Commission

Commenter1: John D. Free

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 3.1.2

Comment Excerpt Text:

Previously, the EPA determined that CCBs do not warrant regulation as a RCRA Subtitle C 

hazardous waste. The APSC understands that EPA issued two formal reports to Congress, in 

1988 and 1999, in which it concluded that CCBs do not warrant regulation as a hazardous 

substance. In addition, in 1993 and 2000, the EPA issued formal regulatory determinations that 

the preferable approach for regulating CCBs was under RCRA Subtitle D, and not Subtitle C, as 

the latter course would adversely impact CCB beneficial use. The APSC agrees with that 

conclusion. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08229-7

Organization1:Alabama Public Service Commission

Commenter1: John D. Free

Commenter Type: State Government
222

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

In this respect, the APSC questions the need for any drastic change to existing practices, 

especially when CCBs are being managed and utilized in a manner that is sufficiently protective 

of human health and the environment. Stated differently, the APSC is not convinced that a single 

failure of a CCB impoundment facility, namely the TVA Kingston spill, by itself justifies the 

conclusion that CCBs are hazardous and that all existing disposal facilities and practices should 

be eliminated in favor of new, extremely costly approaches. To this end, the APSC is not aware 

of any conclusive findings or information that refutes the previous determinations made by EPA 

regarding the need to regulate CCBs as hazardous substances. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-1

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

III. EPA’S PROPOSAL TO LIST CCRs AS A “SPECIAL WASTE” SUBJECT TO RCRA 

SUBTITLE C REQUIREMENTS IS NOT SUPPORTED BY THE AVAILABLE DATA AND 

IS CONTRARY TO LAW

A little over 30 years ago, Congress reauthorized RCRA and exempted from regulation as a 

hazardous waste specific large-volume wastes generated from the combustion of coal or other 

fossil fuels [Footnote 2: See Section III.A for a more thorough discussion of the Congressional 

exemption of CCRs.]. Congress also directed EPA to conduct a detailed and comprehensive 

study based on eight study factors and to submit a Report to Congress on “the adverse effects on 

human health and the environment, if any, of the disposal and utilization of fly ash waste, bottom 

ash waste, slag waste, flue gas emission control waste, and other byproduct materials generated 

primarily from the combustion of coal or other fossil fuels.”[Footnote 3: 42 U.S.C. § 6982(n).] 

Congress was concerned then, as it undoubtedly would be today, that such a listing would 

unfairly burden coal-fired EGUs and as a result would diminish an important domestic energy 

source – while being unnecessary to protect human health or the environment. EPA has 

conducted a number of studies and issued determinations since that time all supporting the 

exemption of CCRs from regulation under Subtitle C.

The first Report to Congress (“RTC”) was published in 1988 and addressed the eight study 

factors required under Section 8002(n) of RCRA for CCRs from electric utilities. Based on the 

RTC, EPA developed the following three preliminary findings:

1) Large-volume wastes – The majority of materials present in the four largevolume wastes are 

not of major concern. Although trace constituents in the wastes may, in some instances, present 
223

risks to human health and the environment, EPA’s review of the data suggested that these wastes 

rarely do not exceed the RCRA TC thresholds [Footnote 4: In evaluating Large-Volume CoalFired Utility Wastes, EPA said, "The Agency has determined that these wastes exhibit the 

characteristics of hazardous waste infrequently, from 0 to 7 percent of the samples depending on 

the waste type," and that this analysis indicates that the “waste[s] rarely exhibit any 

characteristics of hazardous waste and the waste pose very limited risk to human health or the 

environment...” 58 Fed. Reg. 42,446, 42476 (Aug. 9, 1993) (emphasis added).] In addition, the 

RTC concluded that current waste management practices appear to be adequate for protecting 

human health and the environment and that regulation of large volume CCRs under Subtitle C 

was not warranted.

2) Low-volume wastes – Several low-volume wastes typically generated by coalfired electric 

utilities may exhibit the hazardous waste characteristics of corrosivity and toxicity and that the 

Agency was considering removing the exemption for low-volume wastes.

3) Waste utilization – EPA concluded that waste utilization practices appeared to be conducted in 

an environmentally safe manner[Footnote 5: U.S. EPA, Report to Congress: Wastes from the 

Combustion of Coal by Electric Utility Power Plants, EPA/530-SW-88-002 at ES-6 – ES-8 (Feb. 

1988).].

EPA would eventually issue a regulatory determination in 1993 finding that the large volume 

CCRs from coal-fired EGUs should not be regulated under Subtitle C. The second report to 

Congress, issued in 1998, covered CCRs from coal-fired EGUs that were disposed with other 

wastes, as well as CCRs from the non-utility sector. On May 22, 2000, EPA published a Notice 

of Regulatory Determination on Wastes From the Combustion of Fossil Fuels. The determination 

applied to all remaining fossil fuel combustion wastes other than high volume CCRs from EGUs 

that were managed separately, which were addressed in the 1993 regulatory determination. In the 

May 2000 determination, EPA concluded that:

[T]hese wastes do not warrant regulation under subtitle C of RCRA and is retaining the 

hazardous waste exemption under RCRA section 3001(b)(3)(C). However, EPA has also 

determined national regulations under subtitle D of RCRA are warranted for coal combustion 

wastes when they are disposed in landfills or surface impoundments, and that regulations under 

subtitle D of RCRA (and/or possibly modifications to existing regulations established under 

authority of the Surface Mining Control and Reclamation Act (“SMCRA”)) are warranted when 

these wastes are used to fill surface or underground mines [Footnote 6: For a more complete 

discussion of the 1993 and 2000 determinations, please see Sec. III D. 1. a. Notice of Regulatory 

Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,214 

(May 22, 2000).].

Given the issues studied and the consideration of how CCRs should be regulated under RCRA 

over the years, the Agency’s current proposal to list CCRs destined for disposal as “Special 

Wastes” subject to RCRA Subtitle C is at odds with its prior determinations, not supported by 

the data in the administrative record, and does not comply with the applicable legal requirements 

for regulating solid wastes under Subtitle C

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
224

Comment Number: EPA-HQ-RCRA-2009-0640-08244-5

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.3

Comment Excerpt Text:

D. EPA’s Subtitle C Proposal Is Premised On A Dramatic Overstatement Of The Risks Posed By 

CCRs

In addition to its unjustified lumping of CCR materials into one class, this Section explains why, 

based on the data presented in the record, EPA has not satisfied its burden under RCRA of 

establishing that the CCRs (whether considered in the aggregate or individually) “typically or 

frequently are hazardous.”[Footnote 61: 40 C.F.R. § 261.11(b) (emphasis added).] EPA’s 

suggestion that these materials pose a substantial risk is premised on: (1) a risk assessment that 

dramatically overstates the real risks posed by CCRs, and (2) a limited number of damage cases 

that EPA claims show the dangers posed by these materials (see Section III.D.2 below), even 

though those damage cases are not relevant to the risks posed by these materials based on their 

inherent characteristics.

1. To Support Its Determination That Subtitle C Applies, EPA’s Recent CCR Risk Assessment 

Relies On Overly Conservative Assumptions That Are Plainly Inconsistent With Prior 

Assessments

EPA justifies its proposal to regulate CCRs under Subtitle C based in large part on the results of 

its 2003 risk assessment, which it alleges supports a determination that these materials should be 

subject to the hazardous waste generation, storage and disposal requirements of Subtitle C. 

EPA’s new assessment is problematic because (i) it represents a 180-degree reversal from prior 

assessments prepared by the Agency looking at CCR disposal issues, and (ii) it relies on 

unrealistic, overly conservative assumptions and modeling to support its risk conclusions (i.e. 

scenarios that are atypical and infrequent, to the extent that they would ever arise in the real 

world). As such, the administrative record developed by EPA does not support its proposal to 

regulate CCRs under Subtitle C.

a. Prior CCR Assessments

In October, 1980, Congress amended RCRA, adding a provision, known as the Bevill 

Amendment, to temporarily exclude large volume wastes from fossil fuel combustion from 

regulation under Subtitle C unless/until EPA conducted a study that considered the following 

eight factors as a prerequisite to taking any such regulatory action:[Footnote 62: See Section 

III.A above for a more complete discussion of the legal implications of the Bevill amendment.]

1. Sources and volumes of such materials generated per year;

2. Present disposal and utilization practices;

3. Potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

4. Documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proven;

5. Alternatives to current disposal methods;

6. Costs of such alternatives;
225

7. Impact of those alternatives on the use of coal and other natural resources; and

8. Current and potential utilization of such materials.

Congress gave EPA six months to complete the study required by the Bevill Amendment. EPA 

issued an initial temporary exclusion, pending a report to Congress that was eventually issued in 

1988. No further action was taken until a lawsuit was filed to compel the Agency to make a 

formal regulatory determination. EPA entered into a consent decree with all parties to that 

litigation that provided a schedule for making regulatory determinations on two separate 

categories of wastes. EPA would first make a determination regarding fly ash, bottom ash, boiler 

slag, and FGD wastes, by August 2, 1993. EPA agreed to make a determination on all other 

wastes under the Bevill Amendment by April 1, 1998, although that deadline was subsequently 

extended [Footnote 63: EPA presents the full chronology of its prior regulatory actions with 

respect to CCRs in Appenix A of its Regulatory Risk Assessment, including a complete history 

of the various determinations. See EPA, Appendix for Regulatory Impact Analysis, 4-6 (April 

30, 2010).].

In 1993, EPA issued its first official regulatory determination that regulation of CCR materials 

under Subtitle C was not appropriate for fly ash, bottom ash, FGD wastes, and boiler slag 

[Footnote 64: 58 Fed. Reg. 42,466-67.]. EPA based this determination on its conclusion that (i) 

the materials posed low risks, (ii) there were sufficient state and federal regulatory 

controls,[Footnote 65: EPA reviewed regulations in the 17 states that represented approximately 

70 percent of coal ash in the U.S., and found that all but one required operating permits, 12 had 

mandatory liner and groundwater monitoring requirements, and three states had authority to 

impose liner requirements on a case-by-case basis. 14 regulated CCRs as solid wastes, two had 

requirements based on waste characteristics, and one exempted CCRs completely. As a result, 

EPA found that “State regulatory programs are generally adequate.” Id. At 42,476.] and (iii) the 

risks from the wastes were dictated by site-specific characteristics at disposal sites, such as 

groundwater flow and soil properties, rather than uniform characteristics inherent to the residuals 

themselves, such that regulating CCR materials as hazardous wastes was neither scientifically 

sound nor justified as a matter of policy [Footnote 66: “Since [CCR] sites vary widely in terms 

of topographical, geological, climatological, and hydrological characteristics (e.g., depth to 

groundwater, annual rainfall, distance to drinking water sources, soil type) and the wastes' 

potential to leach into the groundwater and travel to exposure points is linked to such factors, it is 

more appropriate for individual States to have the flexibility necessary to tailor specific controls 

to the site or region specific risks posed by these wastes.” Id. at 42,477]. The Agency noted that 

although there were a few groundwater samples which exceeded drinking water standards, they 

would not likely lead to any human exposures at that level due to dispersion in the groundwater 

and a lack of drinking water sources downstream of coal plants or disposal sites [Footnote 67: Id. 

at 42,475.]. In addition, the agency estimated that the cost to industry of listing under subtitle C 

could increase from $800 million annually under the existing disposal framework to between 

$3.7 and $5 billion [Footnote 68: Id. at 42,467-68.]. 

At the time, the Agency did not take a position on regulation under Subtitle D, but when it was 

presented with the suggestion that CCR landfills and impoundments be regulated similarly to 

MSW landfills (40 CFR part 258), EPA responded that:

[w]hile the Agency believes that design and operating requirements similar to part 258 may be 

appropriate for some...[CCR] waste management units, the risks posed by...[CCR] waste 

management are site-specific. Although groundwater contamination has occurred at certain coal 

combustion waste sites, contamination has been due to a limited number of constituents, which 
226

are likely to attenuate and dilute to safe levels before reaching an exposure point. This is in 

contrast to municipal solid waste landfills that are subject to 40 CFR part 258. The leachate at 

these sites often contains elevated levels of a wide range of toxic pollutants, and numerous 

damages have been observed. Therefore, the Agency believes that the level of protection 

provided by the part 258 criteria may not need to be universally applied to all...[CCR] waste 

management units. It is therefore appropriate to allow the States to retain the flexibility to tailor 

requirements to site-specific or regional factors rather than establish broad Federal minimum 

requirements. It should be noted that many States have adopted regulatory requirements 

for...[CCR] waste management units comparable to the part 258 criteria. EPA will consider 

these wastes as part of the Agency’s ongoing assessment of industrial non-hazardous wastes 

under RCRA Subtitle D [Footnote 69: Id. at 42481 (emphasis added).].

EPA published its next risk assessment, for combined wastes and other non-utility fossil fuel 

wastes, in 1998 in draft form. Based on the analysis in the 1998 draft risk assessment, EPA 

issued a report to Congress recommending against Subtitle C regulation, with the possible 

exception of the agricultural use of CCRs [Footnote 70: EPA, Report to Congress Wastes from 

the Combustion of Fossil Fuels Volume 1 – Executive Summary, 3- 5 (March 1999).]. In the 

1998 draft risk assessment and the associated report to Congress, EPA concluded that risks were 

below the toxic and cancer risk levels of concern, with only arsenic generating cancer risks in 

EPA’s Monte Carlo model of greater than 1x10-6, ranging from 4x10-5 to 2x10-5 [Footnote 71: 

Id. at 3-2 - 3-3 (March 1999).]. However, EPA received numerous technical comments on the 

groundwater transport model, EPACMTP, that it was unable to address in time to meet the 

consent decree timeline for releasing its final regulatory determination on the remaining waste 

categories. As a result EPA did not base its 2000 determination on the results of the EPACMTP 

model, for fear that it was inaccurate.

EPA concluded that its 1998 leachate modeling (based on the EPACMTP model) overestimated 

generation and concentrations over time, in part because it was based on a small sample size that 

gave an overly strong weight to a single facility’s worst-case observation, and thus may not have 

accurately reflected actual leachate conditions [Footnote 72: EPA, Ground-Water Pathway 

Human Health Risk Assessment, p. 8-2 1998 (Revised Draft Final).]. Therefore, EPA instead 

relied on surveys of hazardous constituents in CCRs, noting that samples of CCR wastes rarely 

exceeded hazardous waste characteristic levels:

Fossil fuel wastes infrequently exceed the hazardous waste characteristic. For comanaged 

wastes, 2% (1 of 51 samples) exceeded the characteristic level. For individual wastes streams, 

0% of the coal bottom ash, 2% of the coal fly ash, 3% of the coal flue gas desulfurization, and 

7% of the coal boiler slag samples that were tested exceeded the characteristic level [Footnote 

73: 65 Fed. Reg. at 32,222.].

At the time, the only concern expressed by the Agency related to the potential for the leaching of 

arsenic out of the CCR materials. However, in 1993 EPA found that improvements in state and 

federal regulation would likely address the outstanding concerns:

Nonetheless, given most of the states’ current regulatory capabilities and the evidence that basic 

controls are increasingly being put in place by the states and facilities (see RCRA section 

8002(n), which directs EPA to consider actions of state and other federal agencies with a view to 

avoiding duplication of effort), EPA believes that subtitle D controls will provide sufficient 

clarity and incentive for states to close the remaining gaps in coverage, and for facilities to 

ensure that their wastes are managed properly [Footnote 74: Id. at 32,217.]. 

In addition to the preceding considerations, EPA based its 2000 decision, in part, on a desire to 
227

not reduce the beneficial reuse of CCRs, recognizing that a Subtitle C listing had the potential to 

negatively impact such use:

Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, 

given the central concern under the statute for protection of human health and the environment. 

However, given our conclusion that the subtitle D approach here should be fully effective in 

protecting human health and the environment, and given the large and salutary role that 

beneficial reuse plays for this waste, concern over stigma is a factor supporting our decision 

today that [S]ubtitle C regulation is unwarranted in light of our decision to pursue a [S]ubtitle D 

approach [Footnote 75: Id.].

In sum, EPA’s prior evaluations of the hazards posed by CCR materials clearly demonstrate that 

Agency had concluded that these materials are not “typically or frequently” hazardous. Yet, EPA 

dismisses these prior determinations here without sufficient justification why these materials 

suddenly present a hazard to human health or the environment

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08247-11

Organization1:Tucson Electric Power Company

Commenter1: Erik Bakken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

THE SUBTITLE C OPTION PRESENTS INSURMOUNTABLE COMPLIANCE AND 

DISPOSAL OBSTACLES FOR ELECTRIC UTILITIES 

The Bevill Amendment has a primary purpose to ensure that any final regulation of CCRs not 

discourage development of coal as a primary domestic source of energy, avoid unnecessary 

inflationary impact on the use of coal from overly stringent CCRs regulations. In EPA?s 1993 

final Regulatory Determination it was concluded that CCRs do not warrant hazardous waste 

regulation. In this determination EPA found that the Subtitle C regulatory system would result in 

excessive costs and unnecessary regulation as applied to CCRs management units. After 

acknowledging that CCRs rarely exhibit a hazardous waste characteristic and thus would not be 

subject to hazardous waste controls unless they were listed as a hazardous waste, EPA 

emphasized that the listing approach would be inappropriate and excessive to protect human 

health and the environment. EPA?s 1999 Report to Congress, discussed that Subtitle C is 

inappropriate since it would duplicate existing State requirements and would be in excess of 

requirements to protect human health and the environment. As mentioned earlier, CCRs rarely 

exhibit a hazardous waste characteristic and thus would not be subject to hazardous waste 

controls unless they were listed as a hazardous waste. For these reasons, TEP requests that the 

current EPA Administration adhere to the findings of the 1993 final Regulatory Determination 

and the 1999 Report to Congress. If EPA feels that it cannot follow its prior determinations then 
228

it should provide explanation as to why it is reversing its previous determinations, and the 

explanation should provide all pertinent scientific information as to why it is changing its 

position from its final Regulatory determinations.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08255-2

Organization1:LG&E and KU Energy LLC

Commenter1: Robert J. Ehrler on behalf of Dorothy E. O'Brien

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

III.Regulation of Coal Combustion Residuals under Subtitle C of RCRA is Improper and 

Unwarranted. 

The Bevill Amendment to RCRA provides that CCRs shall not be regulated under Subtitle C 

until and unless EPA has submitted a comprehensive study to Congress assessing the 

environmental risks, if any, posed by CCRs and made a final regulatory determination in favor of 

Subtitle C regulation. 42 U.S.C. Section 6921(b)(3). The process specified in the statute reflects 

Congressional intent that EPA should avoid any regulatory actions that unduly impede the use of 

coal. This concern is of critical importance for a state like Kentucky which relies on coal-fired 

generation for more than 92% of its electricity. EPA undertook the requisite studies and 

submitted reports to Congress in 1988 (for certain large volume CCRs) and 1999 (for the 

remaining CCRs). In both reports, EPA concluded that Subtitle C regulation of CCRs was 

inappropriate; EPA issued corresponding regulatory determinations in 1993 and 2000 holding 

that Subtitle C regulation of CCRs was unwarranted. In the present situation, EPA is proposing a 

Subtitle C regulatory option that would reverse EPA’s previous final regulatory determinations, 

despite the lack of any authority under RCRA for regulatory “do-overs,” and without following 

the statutorily prescribed process for making a regulatory determination. Not only has EPA failed 

to provide a reasoned explanation for reversing its previous regulatory determinations that 

Subtitle C regulation was inappropriate, but it also concedes that the environmental protection 

measures under the Subtitle C and Subtitle D options outlined in the Proposed Rule are virtually 

identical, thus contravening the statutory directive that EPA not unnecessarily impede the use of 

coal through Subtitle C regulation. EPA’s rationale for the Subtitle C option rests on the flawed 

logic that the approach will increase beneficial reuse (see specific comments in section V below) 

and the cost estimates in EPA’s Regulatory Impact Analysis are flawed on similar grounds. In 

considering the listing of CCRs as a hazardous waste, EPA has used flawed methodologies that 

do not reflect the low risks posed by CCRs. See Kentucky Comments, pp. 2-3. The Electric 

Power Research Institute and others have conducted extensive research that demonstrates the 

non-hazardous nature of CCRs. EPA’s recent conclusions are directly contradicted by the 

findings in its previous reports to Congress and regulatory determinations. In summary, the 
229

Subtitle C option proposed by EPA must be rejected as arbitrary and capricious, inconsistent 

with the authority granted to EPA under RCRA, and in violation of applicable law.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-4

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 3.1.2 2.1.1

Comment Excerpt Text:

EPA's 1993 And 2000 Bevill Determinations Regarding CCRs 

On August 9, 1993 , EPA published is Regulatory Determination for the first category of CCR 

wastes (58 Fed. Reg. 42,466) and determined that regulation under Subtitle C ofRCRA for these 

wastes was not wal1'anted. On May 22, 2000, EPA published its Regulatory Detelmination for 

the remaining CCRs and concluded that the remaining wastes were largely identical to the highvolume monofilled wastes, which remained exempt based on the 1993 Regulatory 

Detelmination. The high volume wastes simply dominate the waste characteristics even when comanaged with other wastes, and thus, the May 2000 Regulatory Determination addressed not 

only the remaining wastes, but effectively reopened the decision on CCRs that went to monofills. 

While some risks were aclmowledged to be associated with these wastes, EPA fmiher concluded 

that significant improvements were being made in waste management practices due to increasing 

state oversight. On this basis, EPA chose to retain the Bevill exemption for CCRs, and the wastes 

would be regulated under Subtitle D of RCRA as solid wastes. 

The Bevill Amendment to the Clean Air Act established a one-time special process for making 

Bevill regulatory determinations for large volume, low toxicity wastes such as CCRs, and the 

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

statutory-mandated Bevill process must be followed before a Bevill exemption determination can 

be reversed. To reverse a Bevill exemption determination for a waste EPA must: 1) study the 

waste pursuant to eight study factors, 2) submit a repOli to Congress, 3) conduct public hearings 

and provide an opportunity for comment on the report, and 4) if EPA determines that a change in 

the Bevill exemption for the waste is warranted, then it must engage in a notice and comment 

regulatory procedure to promulgate the regulations. EPA has not implemented this procedure 

since the 1993 and 2000 determinations. Therefore, at this time EPA cannot legally reverse its 

1993 and 2000 Regulatory Determinations for CCRs and pursue a Subtitle C hazardous waste 

designation for CCRs. For these reasons Cliffs urges EPA to abandon its consideration of a 

Subtitle C determination for CCRs in this rulemaking. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 
230

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08418-3

Organization1:

Commenter1:Annely Noble

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

The EPA declared coal combustion residuals to be non-hazardous in both 1993 and again in 

2000; why is EPA revisiting this decision in 2010 and considering reclassifying CCRs as 

hazardous waste? This does not make sense!

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08840-11

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

IV. EPGA Endorses the Subtitle D Option

As discussed previously, EPGA believes that regulation of CCRs under RCRA Subtitle C is 

inappropriate and inconsistent with EPA's previous findings that CCRs do not warrant regulation 

as hazardous wastes. We believe that the second option provided in this proposed rulemaking, 

regulation of CCRs destined for disposal under RCRA Subtitle D, is the more appropriate 

regulatory method, and is consistent with EPA's rulemaking record. EPGA does have some 

concerns with the proposed Subtitle D option, which we will explain in detail below.

A. Appropriateness of Subtitle D

EPA was directed by Congress under the Solid Waste Disposal Act to conduct a comprehensive 

study of CCRs to determine the environmental risks, if any, that these materials posed, and report 

back with their findings. Until such time that the study was complete, these materials were 

subject to regulation under applicable federal and state disposal provisions, in lieu of RCRA 

Subtitle C.
231

EPA soon realized that the magnitude of such a study was so large that it needed to divide the 

study into two phases in order to meet the schedule mandated by Congress. The initial phase 

addressed the four large-volume CCRs generated by coal-fired electric generators, which 

included fly ash, bottom ash, boiler slag and flue gas emission control wastes. The second phase 

then covered the remaining CCRs generated by electric utilities and non-utilities. This study 

phase would also include the four large-volume CCRs when co-disposed with these other 

remaining CCRs.

On March 8,1988, EPA reported to Congress, under the first phase of the study, that "EPA does 

not intend to regulate under [RCRA] Subtitle C fly ash, bottom ash, boiler slag, and flue gas 

desulfurization wastes." 1988 Report to Congress at ES-6 (emphasis added).

On August 9, 1993, EPA published its initial final Regulatory Determination for CCRs, an 

additional mandated requirement from Congress. EPA concluded that RCRA Subtitle C 

regulation of the four large-volume CCRs - fly ash, bottom ash, boiler slag, and flue gas 

desulfurization waste - was not warranted. 58 Fed. Reg. 42466.

In March of 1999, EPA provided its Report to Congress on the remaining wastes studied under 

the second phase of the Congressionally mandated study. In this second report, EPA reiterated its 

earlier findings "that [RCRA] Subtitle C is inappropriate to address any problems associated with 

disposal of these wastes and that the continued use of site and region specific approaches by the 

states is more appropriate for addressing the limited human health and environmental risks that 

may be associated with disposal of these wastes." 1999 Report to Congress at 3-5 (emphasis 

added).

Finally, on May 22, 2000, EPA completed its Congressionally-mandated statutorial requirements 

with its final Regulatory Determination for all remaining fossil fuel combustion wastes, 

including CCRs managed with certain low-volume wastes. 65 Fed. Reg. 32214. In this final 

Determination, EPA again concluded, consistent with its previous findings and with its second 

Report to Congress, that CCRs and other fossil fuel combustion wastes did not warrant 

regulation under RCRA's Subtitle C hazardous waste program. EPA further concluded that 

development of national non-hazardous waste regulations under RCRA Subtitle D is the 

appropriate disposal method for CCRs disposed in landfills and surface impoundments. Id.

Thus, it is obvious to EPGA that the second option provided in this current proposed rulemaking, 

regulation of CCRs destined for disposal under RCRA Subtitle D, is consistent with the 

rulemaking record, and is the only logical and appropriate regulatory method

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08844-9

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association
232

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.6

Comment Excerpt Text:

II. EPA'S REEXAMINATION OF THE BEVILL STATUS OF WASTES FROM THE 

COMBUSTION OF FOSSIL FUELS

A. EPA Lacks the Authority to Reverse its 1993 and 2000 Bevill Regulatory Determinations 

Regarding CCRs

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so-called 

Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory 

Determinations for CCRs. It is clear from RCRA, relevant case law, and EPA's prior positions in 

Bevill cases that EPA lacks the authority to reverse its August 1993 and May 2000 Bevill 

Regulatory Determinations regarding CCRs.

1. The Bevill Amendment Establishes a One-Time Special Process For Making Bevill 

Regulatory Determinations

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.C. §§ 6921-6931, generally 

established a "cradle to grave" management scheme governing the generation, transportation, 

treatment, storage and disposal of the hazardous wastes that would be subject to this stringent 

RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA 

Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil 

fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. 

Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer 

regulatory requirements because they were generated in "very large volumes," "posed relatively 

low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous 

waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final 

hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final 

rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as 

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, 

onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations 

and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 

6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill 

Amendment established a special process which EPA was required to follow before CCRs and 

the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See 

also, Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) 

("Indeed, our reading of the statute and legislative history strongly suggests that Congress 
233

designed the Bevill Amendment to break with the previous approach to regulation of hazardous 

industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle 

C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 

6921(b)(3)(A). Congress directed EPA to conduct a "detailed and comprehensive study" on the 

adverse effects on human health and the environment of CCRs and other special wastes. 42 

U.S.c. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how to 

determine if wastes were hazardous and subject to Subtitle C under the regulations that were to 

become effective on November 19, 1980, Congress expressly directed that the Bevill study 

include an analysis of:

1) the source and volumes of CCRs generated per year;

2) present disposal and utilization practices;

3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

4) documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proved;

5) alternatives to current disposal methods;

6) the costs of such alternatives;

7) the impact of those alternatives on the use of coal and other material resources; and

8) the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include 

"appropriate findings," not later than 24 months after October 21, 1980. [d. The Bevill Report 

was to be submitted to the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives. [d.

Fourth, the Bevill Amendment further stipulated that within six months after the Report to 

Congress, EPA, after public hearings and the opportunity for comment, had to determine whether 

to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were 

unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were 

warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle 

C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 

1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on 

the Report to Congress] will be a determination of whether regulation is warranted in the future, 

not regulations themselves.")
234

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980, for 

publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No. 

91-2435 (D. D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel 

combustion wastes into two categories, and agreed to follow the Bevill process separately for the 

two categories. EPA had actually published its First Report to Congress on fossil fuel 

combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 

1988). On August 9, 1993, EPA issued a regulatory determination that regulation of four large 

volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, 

and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 

Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of comanagement, ash derived from co-burning of coal from non-hazardous solid waste, ash derived 

from clean coal combustion, and combustion residues from burning oil and natural gas. EPA 

submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 

28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg. 

32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination that 

hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes 

"[was] not warranted." 65 Fed. Reg. at 32,215. EPA reserved the right to revise this 

determination. See Id. at 32,215 & 32,218.

An analysis of the Bevill Amendment reveals that the above-described special Bevill process 

established by Congress provided for a one-time evaluation of CCRs and the other special wastes 

that cannot be subsequently reversed. First, the Bevill Amendment by its terms calls for a 

"study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory 

context, means that Congress deliberately established a one-time study and one-time Report to 

Congress obligation. Similarly, Congress called for a one-time regulatory determination when it 

stated that "not later than six months after the date of submission of the applicable study" EPA 

should "either determine to promulgate regulations ... or determine that such regulations are 

unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it clear it was establishing a one-time study, report and regulatory 

determination obligation when it required that the report and study be completed by a date 

certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a 

temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach 

consistent with a one-time study, report, and regulatory determination. 42 U.S.C. § 

6921(b)(3)(A). If Congress had intended to extend the Bevill process thirty years beyond the 

1980 date Congress established for completion of the Bevill study and report, Congress would 

have done so explicitly. That Congress did not do so, further confirms that it intended that the 

Bevill process consist of a one-time report, study, and regulatory determination for CCRs.

Accordingly, with the issuance of the 2000 Regulatory Determination, the Bevill process for 

fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the 

Bevill Amendment established a one-time study, report, and regulatory determination for CCRs. 

Accordingly, EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations. 

Any attempt by EPA to do so in the final rule would be unlawful
235

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08855-1

Organization1:Colstrip Energy Limited Partnership (CELP)

Commenter1: R. Lee Roberts

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

EPA Once Recognized One Size Does Not Fit All Landfills 

EPA's two proposed rule-makings (both RCRA subtitle Cand subtitle D) each appear to try to 

impose one uniform set of requirements upon all entities which would be subject to those rules. 

Such an approach in CELP's opinion does not reflect reality. Aside from the obvious difference 

between sludge impoundments and dry ash landfills, there are material and significant 

differences between ash from Pulverized Coal Units ("PCUs") and ash from Fluidized Bed 

Combustors ("FBCs"). As EPA in its 1993 Final Regulatory Determination on Four LargeVolume Wastes from the Combustion of Coal by Electric Utility Power Plants (58 FR No. 151) 

observed at page 42,469: 

"Finally, for the purposes of this action, large-volume wastes from coal-fired electric utilities do 

not include wastes generated from fluidized bed combustion (FBC) boiler units. FBC is a 

relatively new combustion technology that allows for the removal of sulfur without an end-ofpipe scrubber. The wastes generated by this technology were not studied in the RTC, and only 

limited information regarding their characteristics and management has been collected to date. 

The information that is available has not provided EPA with enough evidence to conclude that 

waste generated from FBC units is substantially similar to conventional boiler wastes. Some 

sources maintain that FBC units that burn solely coal as a fossil-fuel source generate fly ash and 

spent bed material that is substantially different from conventional boiler wastes. n5 This is 

because in FBC, coal is burned in the presence of limestone. The differences in the FBC wastes 

are defined by a presence of sulfur compounds and high amounts of residual alkalinity...."

EPA also concluded that further analysis of FBC waste was needed in order to reach conclusions 

as to the character of those wastes. 

"The information does indicate that the use of CFB technology in the electric utility industry may 

be increasing. Because of the current lack of data, the potential ofthe co-firing of limestone to 

have a significant effect on the characteristics of the wastes produced, and the potential for 

increased utilization of the technology, the Agency has decided to defer a decision on these 

wastes until further information from the growing number of facilities can be examined. 

Therefore, the Agency considers these wastes "remaining wastes," which are outside the scope 

oftoday's regulatory determination." 

EPA in its 2000 Regulatory Determination on Wastes From the Combustion of Fossil Fuels; 

Final Rule (FR 65, p. 32,214) once again determined that regulation pursuant to subtitle CRCRA 
236

was not warranted for FBC wastes: 

"In today's action, we are determining that regulation of fossil fuel combustion (FFC) wastes 

under subtitle C of the Resource Conservation and Recovery Act (RCRA) is not warranted. This 

determination covers the following wastes: ***

- Coal combustion wastes generated at facilities with fluidized bed combustion technology;" 

but decided to establish national regulations under subtitle D RCRA 

"While these wastes remain exempt from subtitle C, we have further decided to establish national 

regulations under subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion 

wastes that are disposed in landfills or surface impoundments or uses to fill surface or 

underground mines...." 

EPA observed at page 32,216 that site-specific characteristics should be considered when 

determining the applicable level of regulation for a specific facility: 

"We note, however, that some waste management units may not warrant liners and/or 

groundwater monitoring, depending on site-specific characteristics." 

Unfortunately, in its current proposals EPA does not address the further analysis and study of the 

differences between PCU ash and FBC ash it once deemed appropriate as discussed above, does 

not differentiate between them, and does not recognize that site-specific characteristics can 

materially alter requirements. CELP strongly encourages the EPA to complete the analysis on the 

differences between PCU ash and FBC ash before finalizing the CCR rule. Completing this 

analysis is necessary before including FBC ash in this rule because it may pose significantly 

lower risks to the environment.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09281-15

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

c. Regulation under Subtitle D is consistent with applicable law and the rulemaking record. 

As required under the Bevill Amendment, EPA submitted two prior reports to Congress 

addressing the appropriate regulatory regime for CCR. See 42 U.S.C. § 6982(n). These reports, 

submitted in 1988 and 1999, preceded two previous Regulatory Determinations, issued in 1993 

and 2000. Under these Regulatory Determinations, EPA concluded that regulation under Subtitle 

C of RCRA is inappropriate for CCR, and that Subtitle D can address the environmental and 

public health and safety concerns associated with CCR disposal. Exelon believes that EPA 
237

should implement a regulatory paradigm under Subtitle D, as that approach is consistent with the 

procedural requirements imposed by the Bevill Amendment, the prior Regulatory 

Determinations and the rulemaking record. These factors may help the Agency stave off legal 

challenges as to the implementation process for final CCR disposal rules. A brief summary of 

key findings in the Regulatory Determinations, which were preceded by supporting Reports to 

Congress, and highlights from industry studies and comments from other regulators follows. 

On August 9, 1993, EPA’s review of the proper regulatory regime for disposal of fly ash, bottom 

ash, boiler slag and flue gas emissions control waste from the combustion of coal by electric 

utilities concluded with the determination that “Subtitle C is inappropriate to address the 

problems associated with these wastes and that the site or region specific state approach is 

appropriate for addressing the limited human health and environmental risks involved with the 

disposal of FFC wastes.” 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). In reaching this decision, 

EPA acknowledged that “coal combustion wastes rarely exceed RCRA characteristics for 

hazardous waste” and “[a] Subtitle C system would require coal combustion units to obtain a 

Subtitle C permit (which would unnecessarily duplicate existing state requirements) and would 

establish a series of waste design and operating requirements for these wastes, which would 

generally be in excess of requirements to protect human health and the environment.” Id. EPA 

did, however, indicate that it would continue to consider these wastes during its ongoing 

assessment of industrial non-hazardous wastes under Subtitle D. Id. 

When EPA issued a subsequent Regulatory Determination on May 22, 2000, addressing 

“remaining [coal combustion] wastes,” it determined that “national regulations under subtitle D 

of RCRA are warranted for coal combustion wastes when they are disposed in landfills or 

surface impoundments.” 65 Fed. Reg. 32214 (May 22, 2000). EPA also concluded that a Subtitle 

D approach “should be fully protective of human health and the environment.” 65 Fed. Reg. at 

32233. Moreover, the record indicated that “the structure and the sanctions associated with a 

Subtitle D approach” were sufficient compliance incentives. Id. at 32217. EPA was also 

concerned about regulating CCR disposal in a manner that could adversely impact the beneficial 

use of CCR, and acknowledged that concern was a factor “supporting our decision today that 

subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D approach.” 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. The commenter is also referred to the beneficial use requirements that can 

be found in Unit VI of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09358-2

Organization1:Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3
238

Comment Excerpt Text:

2. The rulemaking record supports continued management of CCRs as non-hazardous waste 

under RCRA Subtitle D as reflected in the two Final Reports to Congress prepared by EPA per 

direction from the Bevill Amendment to RCRA and the subsequent two Regulatory 

Determinations issued by EPA. For approximately the last 30 years, EPA has consistently found 

the Subtitle D approach, along with state involvement, to be the appropriate regulatory course for 

CCRs. EPA has not demonstrated that regulation outside of this regulatory framework is 

appropriate. In fact, EPA indicates by its own actions that it supports a Subtitle D approach for 

the Kingston, Tennessee ash cleanup effort. As part of the approved cleanup plan, ash is being 

disposed as a non-hazardous waste at a Subtitle D landfill.

Comment Number: EPA-HQ-RCRA-2009-0640-09358-8

Organization1:Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

WPL strongly opposes regulation of CCR under RCRA Subtitle C.

1. EPA has not demonstrated that regulation under RCRA Subtitle C is required for protection of 

the environment and human health. Following the passage of the Bevill Amendment to RCRA, 

EPA initiated studies of CCRs for more than 20 years which resulted in EPA Regulatory 

Determinations issued in 1993 and 2000. Both determinations reflected findings that CCRs did 

not warrant regulation under RCRA Subtitle C. No additional determinations have been issued 

by EPA; hence, the proposal option to regulate CCRs under RCRA Subtitle C is inconsistent 

with EPA's own determinations.

Because coal is a national primary source of energy, Congress made clear in the Bevill 

Amendment to RCRA of their intent to be consulted in any EPA actions for CCR regulation, as 

well as directing that input from other federal agencies, states, and the general public should be 

sought. The EPA Subtitle C option reflects total disregard of the nearly unanimous views of 

federal and state agencies that Subtitle C regulation is not warranted for CCRs. Included in this 

list of agencies is the WDNR which testified at the EPA public hearing in Chicago on this 

rulemaking. The WDNR CCR management program is nationally recognized and currently 

includes many of the provisions proposed under the RCRA Subtitle D option.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09530-9

Organization1:PSEG Power LLC and Public Service Electric and Gas
239

Commenter1:Eric B. Svenson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

X. The Subtitle D Option is Consistent with the Rulemaking 

The continuance of a Subtitle D regulatory program is consistent with the two EPA Reports to 

Congress, and the two final Regulatory Determinations EPA has issued pursuant to the Bevill 

Amendment, which determined CCRs do not warrant hazardous waste regulation under RCRA 

Subtitle C. 

Over the past 20 years EPA has consistently determined that a Subtitle D approach is the 

appropriate regulatory course for CCRs. In its CCR Regulatory Determination in 1993 and again 

in 2000, EPA concluded that the Subtitle D approach is most appropriate. EPA reaffirmed the 

appropriateness of Subtitle D option in the 2000 CCR Regulatory Determination, concluding that 

“Subtitle D regulations are the most appropriate mechanism......" [65 Fed. Reg. 32221] 

Furthermore, new production CCR’s rarely exhibit a hazardous waste characteristic, and as such 

do not warrant regulation as a listed hazardous waste under Subtitle C.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09532-2

Organization1:Natural Resource Partners LP

Commenter1:Nick Carter

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

NRP strongly opposes EPA's proposal to reverse the 1993 and 2000 Bevill regulatory 

determinations, which correctly found that CCRs should be regulated as non-hazardous wastes. 

EPA accurately concluded that Subtitle C hazardous waste designation was not appropriate for 

CCRs because it would result in unnecessarily duplicating existing state requirements and 

impose controls on CCRs "which would generally be in excess of requirements to protect human 

health and the environment." 58 Fed. Reg. 42466, 42477 (Aug. 9, 1993). A reversal of these 

determinations would unnecessarily jeopardize the beneficial re-use industry and the jobs its 

supports, in addition to causing more, not less of the CCR's to be landfilled. In EPA's 1999 

Report to Congress, it emphasized the difficulties associated with Subtitle C classification of 

CCRs:
240

The agency has tentatively concluded that the co-managed wastes generated at a coal-fired 

utilities, including petroleum coke combustion wastes as well as wastes from other fuels co-fired 

with coal, generally present a low inherent toxicity, are seldom characteristically hazardous, and 

generally do not present a risk to human health and the environment...lf these wastes were listed 

as hazardous, and therefore regulated under Subtitle C, coal combustion units would be required 

to obtain a Subtitle C permit, which would unnecessarily duplicate existing State requirements, 

and would establish a series of waste unit designation operating requirements for these wastes 

that would most often be in excess of requirements to protect human health and the environment. 

US EPA, Report to Congress on Wastes from the Combustion of Fossil Fuels, Vol. 2,3-73 

(1999).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09712-8

Organization1:Basin Electric Power Cooperative (BEPC)

Commenter1: Claire M. Olson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

Background of the Bevill Amendment 

In 1980, Congress amended ("RCRA") with the passage of the Bevill Amendmentto ensure that 

EPAwould not inappropriately subject CCRs to hazardous waste regulation. The amendment was 

intended to avoid the excessive costs associated with Subtitle C regulation of CCRs and to 

promote their beneficial use. The Bevill Amendment addressed these concerns by suspending 

EPA's authority to regulate CCRs under Subtitle C of RCRA unless and until the Agency 

completed a study and reported to Congress on whether such regulation was warranted. With 

completion of the study and submission of the corresponding Report to Congress, the Bevill 

Amendment required EPA to make a final regulatory determination regarding whether CCRs 

should be regulated under Subtitle C. The Bevill Amendment required the Agency to base this 

final regulatory determination "on information developed or accumulated pursuant to [the RCRA 

8002] study, public hearings, and comment. . . ." RCRA 8002(n), 42 U.S.C . 6982(n). In short, 

EPA could only reach the decision to regulate CCRs under Subtitle Cafter following a 

statutorily- prescribed series of steps that involved congressional oversight marked by EPA's 

submission of reports to Congress that would inform the relevant congressional committees of 

jurisdiction of the Agency's preliminary recommendations. 

Implementation of the Bevill Amendment 

EPA submitted its first Report to Congress on March 8, 1988, concluding that fly ash, bottom 

ash, boiler slag, and flue gasemission control waste generally do not exhibit hazardous 

characteristics under RCRA. Accordingly, EPAstated that it did not intend to regulate those four 
241

large-volume coal combustion waste streams. The initial report went on to encourage the 

utilization of coal combustion wastes to the extent that such utilization could be done in an 

environmentally safe manner. Six months later, EPA reiterated in its first Regulatory 

Determination the conclusion that hazardous waste regulation was not warranted for those four 

large-volume coal combustion waste streams. 58 Fed. Reg. at 42477. The second Report to 

Congress, submitted in March 1999, again concluded that Subtitle C is inappropriate to address 

any problems associated with disposal of several other fossil fuel combustion wastes, including 

CCRs managed with certain low-volume wastes. The report also stated that "the continued use of 

site and region specific approaches by the states is more appropriate for addressing the limited 

human health and environmental risks that may be associated with disposal of these wastes." In 

May 2000, EPA completed the Bevill Amendment's statutorily-prescribed assessment and 

reporting process when it issued its final Regulatory Determination for all remaining fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes. See 65 Fed. Reg. 

at 32214. Echoing its first Regulatory Determination, EPA concluded that CCRs and other fossil 

fuel combustion wastes did not warrant regulation under RCRA's Subtitle C hazardous waste 

program. Instead, EPA determined that regulation as a non-hazardous solid waste under Subtitle 

D of RCRA would be appropriate when CCRs are disposed of in landfills or surface 

impoundments. Id.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-2

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

2. The EPA does not have sufficient reason or basis to reverse its August 1993 and May 2000 

Bevill Regulatory Determinations. 

We believe the EPA has insufficient reason to reverse prior determinations concerning CCR 

management and disposal. The EPA spent significant effort in prior undertakings to review the 

CCR management issue and properly rejected the RCRA Subtitle C option. The arguments 

presented in the current proposal still do not meet the standard for regulating CCR as hazardous 

or special wastes.

The EPA states that it questions whether a natural migration to Subtitle D-like disposal practices 

has occurred as expected in the 2000 determination. If the EPA finds this is the case, the obvious 

next step would be to implement a CCR-specific Subtitle D program much like the current 

proposed option, and not make the over-reaching jump to Subtitle C management practices. 

IPSC believes that given the tremendous volume of CCR from power generation, one would 
242

expect to see more actual cases of CCR specific impacts to human health and the environment 

than actually found (based on EPA's assumption of CCR potential for impact). Since such is not 

the case, Subtitle C is an extreme, costly, inefficient, and legally questionable approach to bring 

CCR disposal practices to a higher standard. 

The EPA states that one indicator for the needed application of a Subtitle C program is due to 

damage cases it has "found" since the 2000 determination. Although any impact from CCR is 

troublesome, IPSC believes that the cases to which the EPA is relying for this determination are 

not in fact proven damage cases as required according to the standards under RCRA. We believe 

the EPA has improperly utilized criteria to bring cases under the umbrella of proven damage 

when in fact they are not. Given a century of CCR disposal, the low number of actual proven 

cases does not warrant a rise to extreme over regulation under Subtitle C. 

Additionally, we believe the EPA has not followed the requirements set out by Congress to 

reverse a Bevill Amendment determination. The 2000 determination was final, and the language 

in the law does not explore reopening a determination. Further, when the EPA does make a 

determination, it must make a report to Congress prior to any regulatory action. It appears that 

the EPA may be on legally thin ground. 

IPSC is concerned that given the previous history of EPA determinations, coupled with the 

EPA's current efforts to stretch reasoning for Subtitle C regulation of CCR, litigation against 

such action would be very likely, further delaying effective and quality management of CCR's 

where it is needed. On it's face, the proposal for a legally indefensible Subtitle C appears to be 

politically motivated, mostly driven by the current administration's extremely strong animus 

against coal. The unfortunate tragedy at Kingston only fueled this animosity. If such politics 

were proven out, it would make the EPA's regulation of CCR under Subtitle C appear arbitrary 

and capricious.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-24

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 4.5.1

Comment Excerpt Text:

IPSC recommends that EPA: 

• Leave the 1993 and 2000 determinations in place; 
243

• Let the Bevill Amendment stand; 

• Adopt the D Prime option as follows: 

~ Allow existing impoundments to operate as described in the proposed rule, especially where 

States can have a protective program in place, and site-specific conditions warrant it; 

~ Where States have comparable Subtitle D programs: 

• Allow existing State landfill permitting regulations to have precedence, 

• Allow existing State groundwater protection standards to have precedence, 

• Allow existing State groundwater monitoring standards to have precedence, 

Allow existing State self reporting requirements to have precedence over company web based 

documentation; 

~ Allow States to adopt best practices under Subtitle D for site specific criteria; 

~ Overlay and institute Subtitle D in areas lacking at the State level. 

~ Let similar State financial assurance programs operate in place of CERCLA.

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

referred to the preamble discussion for this final rule to see how EPA has addressed each of 

your statements regarding what the rule should or should not contain. 

Comment Number: EPA-HQ-RCRA-2009-0640-09750-6

Organization1:American Coal Council (ACC)

Commenter1: Janet Gellici

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 2.1.3

Comment Excerpt Text:

A hazardous designation is not supported by three decades of EPA study and formal 

determinations based on strong scientific research. Previous regulatory determinations in 1993 

and 2000 clearly document that CCPs should continue to be exempt from regulation as a 

hazardous waste under RCRA. In its 1993 Report to Congress, EPA stated it “encourages the 

utilization of coal combustion wastes as one method for reducing the amount of these wastes 

requiring disposal and supported voluntary efforts by industry to investigate new possibilities for 

utilizing coal combustion wastes.” 

On May 22, 2000, EPA issued a Final Regulatory Determination stating that fossil fuel 

combustion wastes “do not warrant regulation under RCRA Subtitle C,” thereby retaining the 
244

original Bevill exemption under RCRA. EPA further determined that there will be no regulation 

for CCRs when beneficially used and that EPA does “not wish to place any unnecessary barriers 

on beneficial use.” 

The ACC supports these prior EPA determinations.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-17

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

The rulemaking record supports regulation of CCRs under Subtitle D

It is important to emphasize that the development of Subtitle D non-hazardous waste regulations 

for CCRs is fully consistent with the rulemaking record. In fact, it is the only lawful option 

available to the Agency. The development of Subtitle D regulations would be the appropriate 

outgrowth of EPA’s two Reports to Congress and two Regulatory Determinations under the 

Bevill amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA 

Subtitle C, but rather should remain primarily the province of state regulatory programs under 

RCRA Subtitle D. Throughout its 20- year study and issuance of the required Reports to 

Congress and final CCR Regulatory Determinations, EPA has consistently found that the 

Subtitle D approach, with active state involvement, was the appropriate regulatory course for 

CCRs. In its first CCR Regulatory Determination in 1993, EPA concluded that, because “the 

potential for damage from these wastes is most often determined by site- or region-specific 

factors,” the “current State approach to regulation” under RCRA Subtitle D is most appropriate. 

EPA echoed this finding in its second Report to Congress in 1999, concluding once again “that 

[RCRA] Subtitle C is inappropriate to address any problems associated with disposal of these 

wastes and that the continued use of site and region specific approaches by the states [under 

RCRA Subtitle D] is more appropriate for addressing the limited human health and 

environmental risks that may be associated with disposal of these wastes.”

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 Regulatory 

Determination, concluding that “the subtitle D regulations are the most appropriate mechanism 

for ensuring that [CCRs] disposed in landfills and surface impoundments are managed safely.” In 

addition to the fact that CCRs rarely exhibit a hazardous waste characteristic, EPA explained that 

the decisive factors underlying its final determination that CCRs do not warrant regulation under 

RCRA’s Subtitle C hazardous waste regulations were:

• improving trends in present CCR disposal and utilization practices;
245

• the current and potential utilization of CCRs (i.e. beneficial use); and

• Congress’ admonition in the Bevill Amendment against duplication of efforts by other federal 

and state agencies.

In concluding that Subtitle D was the appropriate regulatory path forward, EPA also pointed to 

the record evidence as set forth in the 1999 Report to Congress that “the utility industry has 

made significant improvements in its waste management practices over recent years” and to 

similar record evidence that “state [CCR regulatory] programs have, in fact, substantially 

improved over the last 15 years or so.” EPA found that “the ability for most states to impose 

specific regulatory controls for coal combustion wastes has increased almost three-fold over the 

past 15 years.” EPA concluded that, “with the exception of relatively few states, the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes.”

This positive trend has continued, with EPA and DOE finding in their joint 2007 report of state 

CCR controls that “[t]he data and analyses documented in this report provide new information 

that appears to show improved management of CCWs in both landfills and surface 

impoundments.” Since the initiation of this rulemaking effort, the record support for the Subtitle 

D option has become even more compelling. Over the last year, the overwhelming majority of 

the states, the National Governors Association, municipal and local governments, ASTSWMO, 

the Environmental Council of the States, over two dozen state environmental protection agencies 

and state departments of transpiration, federal agencies including the Department of Energy, a 

bi-partisan group of 165 members of Congress (including the majority of the House Energy and 

Commerce Committee), 45 U.S. Senators and many other third parties have expressed their 

support for regulation of CCRs as a non-hazardous waste under RCRA Subtitle D. Given the 

breadth of federal agency, state, local and congressional support for the Subtitle D option, 

rejection of the Subtitle D option in favor of the Subtitle C approach would fly in the face of the 

Bevill amendment’s directive that any final regulatory program for CCRs take into account the 

views of other federal agencies and the states to ensure a unified decision that “avoid[s] a 

duplication of effort.” As noted above, Representative Bevill repeatedly cautioned EPA that it 

was not to make a final regulatory determination for CCRs “in a vacuum,” but rather was to 

consult and coordinate with other key agencies that have evaluated CCRs, including, the 

Departments of Energy, Interior and Agriculture, as well as other government agencies, to ensure 

a coordinated regulatory approach for CCRs consistent with the nation’s “commitment to 

develop a coherent and consistent policy toward the use of our coal and other energy resources.” 

These federal, state, municipal and local agencies have spoken and are virtually unanimous in 

their support of the Subtitle D approach.

In short, given the overwhelming views by the very agencies that Congress directed EPA to 

consult with in determining how to regulate CCRs under RCRA, combined with EPA’s own 

Reports to Congress and two final Regulatory Determinations rejecting the concept of regulating 

CCRs under RCRA’s hazardous waste program, the Subtitle D option provides the only lawful 

regulatory approach for these materials under RCRA

Response: The Agency acknowledges and appreciates the comment. 
246

Comment Number: EPA-HQ-RCRA-2009-0640-09885-2

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

EPA published its first final Regulatory Determination for CCRs on August 9, 1993. This final 

Regulatory Determination set forth EPA’s conclusion that RCRA Subtitle C regulation of the 

four large-volume CCRs – fly ash, bottom ash, boiler slag, and flue gas desulfurization waste –

was not warranted. Specifically, the Agency concluded that Regulation under Subtitle C of 

RCRA is inappropriate for the four waste streams that were studied [fly ash, bottom ash, boiler 

slag, and flue gas emission control waste] because of the limited risks posed by them and the 

existence of generally adequate State and Federal regulatory programs. The Agency also believes 

that the potential for damage from these wastes is most often determined by site- or regionspecific factors and that the current State approach to regulation is thus appropriate. Therefore, 

the Agency will continue to exempt these wastes from regulation as hazardous wastes under 

RCRA Subtitle C .... EPA will consider these wastes during the Agency’s ongoing assessment 

of industrial nonhazardous wastes under RCRA Subtitle D.

EPA determined that the four large-volume CCRs did not warrant Subtitle C hazardous waste 

controls, concluding that the inflexible Subtitle C hazardous waste framework was wholly 

inappropriate for CCRs. The agency stated that “it is unlikely that Subtitle C would effectively 

address the problems associated with the four large-volume fossil-fuel combustion wastes 

[CCRs] without imposing unnecessary costs.” EPA found that the rigid nature of the Subtitle C 

regulatory system would result in excess costs and unnecessary regulation as applied to CCR 

management units:

A Subtitle C system would require coal combustion units to obtain a [RCRA] Subtitle C permit 

(which would unnecessarily duplicate existing State requirements) and would establish a series 

of waste unit design and operating requirements for these wastes, which would generally be in 

excess of requirements to protect human health and the environment. For example, if such wastes 

were placed in the Subtitle C universe, all ash disposal units would be required to meet specific 

liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, 

geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual 

rainfall, distance to drinking water sources, soil type) and the wastes potential to leach into the 

groundwater and travel to exposure points is linked to such factors, it is more appropriate for 

individual States to have the flexibility necessary to tailor specific controls to the site or region 

specific risks posed by these wastes.

Following issuance of the 1993 Regulatory Determination, EPA began work on its second report 
247

to Congress on the remaining fossil fuel combustion wastes, including CCRs managed with 

certain low-volume wastes. EPA issued its second Report to Congress in March 1999, reiterating 

“that [RCRA] Subtitle C is inappropriate to address any problems associated with disposal of 

these wastes and that the continued use of site and region specific approaches by the states is 

more appropriate for addressing the limited human health and environmental risks that may be 

associated with disposal of these wastes.” EPA also reiterated its belief that regulating CCRs 

under RCRA’s hazardous waste program would unnecessarily duplicate existing state 

requirements and would establish a series of waste unit design and operating requirements for 

these wastes that would most often be in excess of requirements to protect human health and the 

environment.

EPA completed the statutorily-required Bevill amendment process in May 2000 when it issued 

its final Regulatory Determination for all remaining fossil fuel combustion wastes, including 

CCRs managed with certain low-volume wastes. Based on record evidence, hearings and public 

comment on the 1999 Report to Congress, EPA once again concluded that CCRs and other fossil 

fuel combustion wastes did not warrant regulation under RCRA’s Subtitle C hazardous waste 

program. EPA concluded instead that the development of national non-hazardous solid waste 

regulations under RCRA Subtitle D is appropriate when CCRs are disposed of in landfills or 

surface impoundments. In addition to the fact that CCRs rarely exhibit a hazardous waste 

characteristic, EPA explained that its final determination was based on the improving trends in 

present CCR disposal and utilization practices, the current and potential utilization of CCRs (i.e., 

beneficial use) and Congress’ admonition in the Bevill amendment against duplication of efforts 

by other federal and state agencies. EPA pointed to the record evidence that the utility industry 

has made significant improvements in its waste management practices over recent years and to 

similar record evidence showing that “[CCR regulatory] programs have, in fact, substantially 

improved over the last 15 years or so.”

In fact, EPA found that the ability of most states to impose specific regulatory controls for coal 

combustion wastes has increased almost three-fold over the past 15 years. EPA concluded that 

with the exception of relatively few states, the regulatory infrastructure is generally in place at 

the state level to ensure adequate management of these wastes. Thus, EPA concluded that “[w]e 

believe that subtitle D regulations are the most appropriate mechanism for ensuring that these 

wastes disposed in landfills and surface impoundments are managed safely.” Given existing state 

CCR regulatory capabilities and the evidence that basic controls are increasingly being put in by 

the state and facilities, EPA was mindful of Congress’s directive in section 8002(n) that the 

agency, in reaching a final determination, consider “[the] action of state and other federal 

agencies with a view to avoiding duplication of effort.” Consistent with this statutory dictate, 

EPA concluded that Subtitle D controls will provide sufficient clarity and incentive for states to 

close the remaining gaps in coverage, and for facilities to ensure that their wastes are managed 

properly. Also critical to EPA’s final determination that CCRs do not warrant regulation under 

Subtitle C was the Bevill amendment’s direction in RCRA section 8002(n) that any final 

decision take into account the current and potential utilization of such materials. In particular, 

EPA saw a potential downside to pursuing a Subtitle C approach, citing the concerns expressed 

by commenters that subjecting any coal combustion wastes to a Subtitle C regime would place a 

significant stigma on these wastes, the most important effect being that it would adversely 

impact beneficial reuse. EPA acknowledged the possibility that the Subtitle C approach could 
248

have unintended consequences and that the agency was particularly concerned about any adverse 

effect on the beneficial reuse market for these wastes. EPA concluded that, given its conclusion 

that the Subtitle D approach should be fully effective in protecting human health and the 

environment, and given the large and salutary role that beneficial reuse plays for this waste, 

concern over stigma was a factor supporting the agency’s decision that Subtitle C regulation is 

unwarranted in light of the decision to pursue a Subtitle D approach.

After EPA issued its final 2000 Regulatory Determination, the agency continued to evaluate 

options for implementing Subtitle D non-hazardous waste regulations for CCRs. As part of this 

process, in 2005 and 2006, EPA and the U.S. Department of Energy (DOE) jointly conducted a 

study of current and recent (1) management practices for CCR disposal by industry, (2) state 

regulatory requirements for CCR management and (3) implementation of state requirements by 

state authorities. This study examined landfills and surface impoundments that were permitted, 

built, or laterally expanded between January 1, 1994 and December 31, 2004 to determine what 

changes, if any, in CCR disposal management practices and state regulatory controls had 

occurred since the 1994 close of the administrative record for the Bevill Regulatory 

Determination and EPA’s 1999 Report to Congress.

In a report titled “Coal Combustion Waste Management at Landfills and Surface Impoundments, 

1994-2004” (DOE/EPA Report), DOE and EPA found that, “[b]etween 1994 and 2004, the 

amount and quality of environmental controls used at CCW management units appear to have 

increased.” The DOE/EPA Report cited improvements in the management of CCRs in new or 

expanded landfills and surface impoundments, including the use of liners and the monitoring of 

groundwater. EPA and DOE also examined whether state CCR regulatory controls had similarly 

improved and found that “[i]n eight areas of regulatory control reviewed for this report, more 

CCWs destined for landfills in the States reviewed had tightened regulatory controls than had 

relaxed controls between the times data were collected for the 1988 [Report to Congress] and for 

this report.” Consistent with this continuing improvement in the administration of state CCR 

controls, EPA and DOE also found that the grants of variances from regulatory controls by state 

regulators had sound scientific support. Based on the above, the DOE/EPA Report concluded 

that “[t]he data and analyses documented in this report provide new information that appears to 

show improved management of CCWs in both landfills and surface impoundments.” The 

findings of the DOE/EPA Report are significant because they provide updated information 

supporting the conclusions in the final 2000 Regulatory Determination that Subtitle C regulation 

of CCRs is not warranted due, in part, to the significant and continuing improvements in CCR 

waste management practices and corresponding improvements in state CCR regulatory 

programs. Since completion of the DOE/EPA Report in 2007, several states have proposed 

and/or implemented further enhancements of their CCR controls

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-8

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi
249

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

EPA does not justify a change in position that would use Subtitle C.

In addition to the above, EPA’s selection of the Subtitle C option would be arbitrary and 

capricious because the agency has provided no explanation as to why its earlier conclusions that 

the Subtitle C option would result in excessive and inappropriate regulatory controls for CCRs 

are no longer true. The EPA’s 1993 final Regulatory Determination concluded that the four large 

volume CCRs – fly ash, bottom ash, boiler slag, and flue gas desulfurization waste – do not 

warrant hazardous waste regulation. EPA emphasized that the inflexible Subtitle C hazardous 

waste framework was inappropriate for CCRs, explaining “that it is unlikely that Subtitle C 

would effectively address the problems associated with the four large-volume fossil-fuel 

combustion wastes [CCRs] without imposing unnecessary controls.”

This was an important conclusion. As the agency explained in outlining the factors that it would 

evaluate in making a final regulatory determination, “the special status of the [CCR] waste 

requires that the Agency consider the impacts to the industry that regulation under Subtitle C 

would create in making a decision to regulate the waste as hazardous.” EPA found that the rigid 

nature of the Subtitle C regulatory system would result in excess costs and unnecessary 

regulation as applied to CCR management units. After acknowledging that CCRs rarely exhibit a 

hazardous waste characteristic and thus would not be subject to hazardous waste controls unless 

they were listed as a hazardous waste, EPA emphasized that the listing approach would be 

inappropriate and excessive.

Having previously concluded that the Subtitle C approach would be inappropriate because, 

among other reasons, it would result in the over-regulation of CCRs in contravention of the 

Bevill amendment, EPA provides no explanation in the proposal as to what, if anything, has 

changed to suggest that the imposition of these very same Subtitle C controls will no longer 

result in inappropriate and unnecessary costs on the utility industry. As EPA itself noted earlier, 

“the special status of the [CCR] waste requires that the agency consider the impacts to the 

industry that regulation under Subtitle C would create in making a decision to regulate the waste 

as hazardous.” There is no reasoned explanation for EPA’s about-face on this issue.

The excessive costs and unduly burdensome regulation of CCRs under the proposed Subtitle C 

option are at least as great today as they were ten years ago when EPA rejected application of the 

Subtitle C hazardous waste rules for CCRs. As EPA has failed to explain why regulation of 

CCRs under Subtitle C is now appropriate, having expressly found earlier that such regulation 

would be both “inappropriate” and in “excess of requirements” for CCRs, any final Subtitle C 

regulation would be arbitrary and capricious

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 
250

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10017-17

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

Moreover, the EPA may not so cavalierly reverse the Bevill Regulatory Determinations it made 

previously in August 1993 and May 2000. As mentioned in the Subtitle D comments above, EPA 

has provided two Reports to Congress ("Reports") and issued two Regulatory Determinations 

("Determinations") that were based on extensive research and analysis. Both Reports and 

Determinations clearly affirmed the regulation of CCRs as non-hazardous waste and supported 

regulation of CCRs under RCRA Subtitle D. In the Reports and Determinations, EPA 

recommended that states implement CCR disposal rules under RCRA Subtitle D and supported 

the continued beneficial use of CCRs.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10017-8

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.4 2.1.3

Comment Excerpt Text:

In its proposal, EPA appears to ignore the long rulemaking record relating to CCRs. Over the last 

twenty years, EPA has provided two Reports to Congress and issued two Regulatory 

Determinations that unequivocally found that CCRs do not warrant regulation as a hazardous 

waste. Further, the Reports reiterate the fact that states are the most appropriate regulatory 

agencies for regulation of CCRs and noted that EPA would retain its existing regulatory 

authority under RCRA's imminent and substantial endangerment provisions under RCRA 

Section 7003. If EPA is now concerned with its ability to enforce a Subtitle D program, EPA 

should look to the federal enforceable regulations for municipal solid waste landfills 

("MSWLFs") under 40 CFR Part 258, as authorized by RCRA Sections 4010(c) and 4005(c) for 

guidance. The MSWLF regulations provide states with program implementation and regulatory 

authority over MSWLFs while allowing EPA to step in when states do not fulfill their 
251

obligations. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-3

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Shortly after enactment of the Bevill Amendment in 1980, EPA began the required report to 

Congress (“Report to Congress”) but soon realized that the scope of such a report would be so 

broad that the Agency would have difficulty completing the work by the statutory deadline of 

October 1982. As a result, EPA divided the statutorily mandated report to Congress into two 

phases. The initial phase addressed the four large-volume CCRs generated by coal-fired electric 

utilities, including: fly ash, bottom ash, boiler slag, and flue gas emission control waste. See 

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

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

including the above-identified CCRs when co-managed with certain low volume wastes. See id.; 

see also 1999 Report to Congress at ES1-2; 65 Fed. Reg. 32214, 32218 (May 22, 2000).

A. EPA’s March 1988 Report To Congress On CCRs

Pursuant to this two-phase approach, EPA published its first Report to Congress on March 8, 

1988, concluding that the large-volume coal combustion waste streams listed above generally do 

not exhibit hazardous characteristics under current RCRA regulations, and therefore “EPA does 

not intend to regulate under [RCRA] Subtitle C fly ash, bottom ash, boiler slag, and flue gas 

desulfurization wastes. 1988 Report to Congress at ES-6. The 1988 Report to Congress also 

encouraged the use of coal combustion wastes to the extent such use can be done in an 

environmentally safe manner. Id. at ES-8.

B. EPA’s 1993 Final Regulatory Determination For CCRs

EPA published its first final Regulatory Determination for CCRs on August 9, 1993. [Footnote 7: 

In September 1991, an Oregon-based citizens group, Citizens Interested in Bull Run, Inc., filed a 

RCRA citizen suit against EPA for the Agency‘s alleged failure to meet certain statutory 

deadlines, including the Bevill Amendment‘s October 1982 statutory deadline for issuing a final 

regulatory determination for CCRs. Gearhart v. Reilly, No. 91-2345 (D.D.C. 1991) (“Bull Run”). 

USWAG intervened in the litigation, and EPA entered into a settlement agreement in which it 

agreed to issue the final regulatory determination for the electric utility-CCRs addressed in the 
252

1988 Report to Congress by August 2, 1993, while deferring a supplemental report to Congress 

and regulatory determination on all other fossil fuel combustion wastes, including CCRs 

managed with certain low volume wastes, until April 1, 1998.] This final Regulatory 

Determination set forth EPA‘s conclusion that RCRA Subtitle C regulation of the four largevolume CCRs – fly ash, bottom ash, boiler slag, and flue gas desulfurization waste – was not 

warranted. 58 Fed. Reg. 42466 (Aug. 9, 1993). Specifically, the Agency concluded that:

Regulation under Subtitle C of RCRA is inappropriate for the four waste streams that were 

studied [fly ash, bottom ash, boiler slag, and flue gas emission control waste] because of the 

limited risks posed by them and the existence of generally adequate State and Federal regulatory 

programs. The Agency also believes that the potential for damage from these wastes is most 

often determined by site- or region-specific factors and that the current State approach to 

regulation is thus appropriate. Therefore, the Agency will continue to exempt these wastes from 

regulation as hazardous wastes under RCRA Subtitle C .... EPA will consider these wastes 

during the Agency‘s ongoing assessment of industrial non-hazardous wastes under RCRA 

Subtitle D.

Id. at 42466.

EPA‘s conclusion not to regulate CCRs under Subtitle C was also based on the inflexible 

Subtitle C hazardous waste framework, which the Agency found inappropriate for CCRs. The 

Agency stated that “it is unlikely that Subtitle C would effectively address the problems 

associated with the four large-volume fossil-fuel combustion wastes [CCRs] without imposing 

unnecessary costs.” Id. at 42477. EPA reached this conclusion after evaluating a number of 

factors, including “the impacts to the industry that regulation under Subtitle C would create . . . .” 

Id. at 42471. Not surprisingly, EPA found that the rigid nature of the Subtitle C regulatory 

system would result in excess costs and unnecessary regulation as applied to CCR management 

units:

A Subtitle C system would require coal combustion units to obtain a [RCRA] Subtitle C permit 

(which would unnecessarily duplicate existing State requirements) and would establish a series 

of waste unit design and operating requirements for these wastes, which would generally be in 

excess of requirements to protect human health and the environment. For example, if such wastes 

were placed in the Subtitle C universe, all ash disposal units would be required to meet specific 

liner and monitoring requirements. Since [CCR] sites vary widely in terms of topographical, 

geological, climatological, and hydrological characteristics (e.g., depth to groundwater, annual 

rainfall, distance to drinking water sources, soil type) and the wastes‘ potential to leach into the 

groundwater and travel to exposure points is linked to such factors, it is more appropriate for 

individual States to have the flexibility necessary to tailor specific controls to the site or region 

specific risks posed by these wastes.

Id. at 42477.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
253

Comment Number: EPA-HQ-RCRA-2009-0640-10497-2

Organization1:Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

III. EPA’s Proposed Regulation of CCRs under Subtitle C is Ultra Vires and Exceeds EPA’s 

Statutory Authority

For the first time, EPA has published a proposal to regulate CCRs destined for disposal as 

hazardous wastes. In so doing, EPA is attempting to reverse its 1993 final regulatory 

determination which, following an extensive study, report to Congress, and public comment, 

determined that subtitle C regulation of CCRs was not warranted. 58 Fed. Reg. 42466 (Aug. 9, 

1993). This determination was confirmed in 1999 in the second part of EPA’s regulatory 

determination which applied to coal combustion wastes other than the four large volume coal 

combustion wastes. 65 Fed. Reg. 32214 (May 22, 2000). EPA was granted limited statutory 

authority to make a single determination as to whether CCRs should be regulated as a hazardous 

waste. EPA exercised this authority in 1993 in relation to the large volume CCRs and does not 

have the statutory authority to reverse that determination absent specific congressional 

authorization. Moreover, even assuming EPA did possess such authority, it did not follow the 

mandated statutory process for rendering a regulatory determination. Consequently, the subtitle 

C option is ultra vires and unlawful.

a. EPA’s Regulatory Determination is Complete and Can Not be Reopened Absent Specific 

Congressional Authorization

In 1980, Congress amended the Resource Conservation and Recovery Act (“RCRA”) and 

established an exemption from hazardous waste regulations for CCRs. The exemption, known as

the Bevill Amendment, is set forth in a section entitled “Identification and listing of hazardous 

waste.” 42 U.S.C. § 6921. Subsection (a) requires that EPA “promulgate criteria for identifying 

the characteristics of hazardous waste, and for listing specific hazardous wastes, which would be 

subject to the provisions of this subchapter.” Id. at § 6921(a). Within that statutory section, CCRs 

were specifically identified as exempt from hazardous waste regulations pending EPA’s 

completion of a study. Id. at § 6921(b)(3)(A). Specifically, EPA was directed to conduct “a 

detailed and comprehensive study” analyzing eight enumerated factors, and to submit a “report 

on the adverse effects on human health and the environment, if any, of the disposal and 

utilization of CCRs.” 42 U.S.C. § 6982(n). The report was to be submitted to Congress, and 

thereafter subject to public comment and hearings. 42 U.S.C. § 6921(b)(3)(C). Based on its 

findings, EPA was to publish its determination as to whether CCRs should be regulated as

hazardous waste. Id. In 1993, EPA completed this process for fly ash, bottom ash, boiler slag, 

and flue gas emission control waste and published its final regulatory determination in the 

Federal Register. 58 Fed. Reg. 42466. Specifically, the agency concluded that these large volume 
254

CCRs did not warrant regulation as hazardous waste. Id.

This final regulatory determination was affirmed by EPA in May 2000 when it published its 

regulatory determination for all other fossil fuel combustion wastes generated at electric utilities 

that were not addressed in 1993. 65 Fed. Reg. 32214. While EPA found that subtitle C regulation 

of CCRs was unwarranted, it concluded that subtitle D regulation of CCRs disposed in landfills 

or surface impoundments, or used in minefill operations, was warranted. Id. EPA based its 

determination, in part, on increasing state regulation of CCR management, finding that “the 

regulatory infrastructure is generally in place at the state level to ensure adequate management of 

these wastes.” Id. at 32216-17. Furthermore, EPA stated that subtitle D controls would provide 

sufficient clarity and incentive for states to close the remaining gaps in state coverage. Id. at 

32217.

Despite the findings of the 2000 regulatory determination, EPA did not promulgate subtitle D 

regulations. Instead, more than eight (8) years later, it performed a u-turn and drafted a 

regulatory proposal that would subject CCRs to subtitle C regulation. Draft CCR Proposal, EPAHQ-RCRA–2009-0640-0013 (Oct. 16, 2009). This regulatory proposal was substantially revised 

following review by the Office of Management and Budget and resulted in the current Proposed 

Rules. Comparison of Final Draft Rule, EPA-HQ-RCRA–2009-0640-0012 (May 3, 2010).

Even as revised, the adoption of the subtitle C proposal would unlawfully reverse the 1993 

regulatory determination. EPA cannot simply reverse its final regulatory determination without 

Congressional authorization. The Bevill Amendment directed EPA to follow a specific and 

comprehensive process culminating in a final determination as to whether subtitle C regulation 

of CCRs was warranted. 42 U.S.C § 6921(b)(3)(C). EPA followed that process and in 1993 

issued its final regulatory determination for the four large Volume CCRs. 58 Fed. Reg. 42466. 

Congress did not authorize EPA to revisit its determination or conduct an ongoing evaluation. 

The statutorily mandated process, therefore, is complete, and there remains nothing further for 

EPA to do absent specific Congressional direction or authorization. Absent such clear direction, 

EPA is without authority to reverse its final determination.

The statutory text of the Bevill Amendment shows Congress’s unmistakable, unambiguous 

expressed intent that EPA conduct only one determination. Congress repeatedly called on EPA to 

produce one, single study. 42 U.S.C. § 6982(n) (“a ... study,” “a report,” “such study,” “this 

study,” “shall publish a study on such report”). Furthermore, the verbs in the text indicate EPA 

and Congress must act on a single study. Id. (providing for study of several factors at one time; 

for publication of the study on a single, specified date; and for presentation of a single report to 

committees). [Footnote 1: EPA ultimately performed two studies and two regulatory 

determinations published in 1993 and 2000. This bifurcated process was imposed by the consent 

decree entered in Gearhart v. Browner, No. 91-2435 (D.D.C), as a result of EPA’s delayed 

completion of the study and report mandated by Congress. Specifically, the consent decree 

directed EPA to complete its regulatory determination for the four large volume wastes by 

August 2, 1993, and to complete its regulatory determination for the “remaining wastes” - i.e., all 

other fossil fuel combustion wastes generated at electric utilities that were not addressed in 1993 

- by April 25, 2000. 65 Fed. Reg. at 32218. Even so, this simply meant EPA’s single study was 

divided into two parts, thereby keeping with Congressional intent.]

Furthermore, this understanding of Congressional intent is supported by the statutory text of 

RCRA. Section 8002 of the act, 42 U.S.C. § 6982, is entitled “Special studies; plans for research, 

development, and demonstrations.” The Bevill Amendment was placed in this section because it 

was only one of many studies Congress mandated that EPA conduct. Each of these studies, then, 
255

provides some context to the Bevill Amendment. Section 8002 delineates over 19 types of 

studies. Of these, 18 use similar language to the Bevill Amendment and clearly indicate that only 

one study was to be conducted.

Conversely, subsection (s), which deals with extending the useful life of landfills, just as clearly 

indicates that multiple studies are necessary. Specifically, this subsection requires 

“comprehensive studies,” and “such studies shall address” a number of factors Congress listed. 

Id. at (s). Congress also indicated its ongoing interest in the subject by requiring that “[t]he 

Administrator shall periodically report on the results of such studies.” Id. Thus, had Congress 

intended for the Bevill Amendment determination to be ongoing, it would have used language 

like it did in subsection (s). Congress would have stated that it wanted multiple reports and 

would have explicitly required EPA to continue to submit periodic reports. Congress did not 

provide such authority, and EPA cannot act without it.

EPA may claim that it left the door open for an ongoing review. It did not, and it cannot. In the 

2000 regulatory determination, EPA stated that it “may conclude over the next several months 

that this decision [not to regulate CCRs under subtitle C] should be revised.” 65 Fed. Reg. 

32218. Such language is meaningless, absent clear Congressional authorization, and it does not 

enable EPA to render its final regulatory determination a work in progress. This argument also 

ignores the fact that the final regulatory determination for the four large volume CCRs (fly ash, 

bottom ash, boiler slag and FGD waste) was published in 1993. While the 2000 regulatory 

determination affirmed the 1993 regulatory determination, its focus was explicitly limited to the 

“remaining wastes.” Id. Therefore, even if such language was sufficient to keep the regulatory 

determination open, it would be limited to the subject matter of that specific regulatory 

determination and not the four large volume CCRs

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10498-6

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1:Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

a. The Decisive Factors in EPA’s Two Previous Determinations Remain Valid Today

In its 1993 Regulatory Determination, EPA recognized that hazardous constituents in CCRs have 

the potential to leach into groundwater under certain conditions, but that exceedences above 

toxicity characteristic regulatory levels were infrequent and that the average concentrations of 

constituents were below characteristic toxic levels. 58 Fed. Reg. 42475-76. EPA also found that 

the potential for human exposure solely from the large-volume CCRs was limited under the 

management practices employed at the time and further noted that management practices were 

moving toward more protective management practices, including lined systems and groundwater 
256

monitoring. Id. These findings lead EPA to conclude that management practices and regulatory 

controls were adequate. Id. at 42476. Not only did EPA conclude that existing state programs 

were adequate, EPA determined that it was “unlikely that subtitle C regulations would 

effectively address the problems associated with the four-large volume CCRs without imposing 

unnecessary controls.” Id. at 42477. Specifically, EPA found that many of the unit design and 

operating requirements would exceed requirements to protect human health and the environment, 

and that existing state requirements would be unnecessarily duplicated. Id. Based on these 

findings, EPA concluded that subtitle C regulations were not appropriate to address the problems 

associated with CCRs and that they should be addressed by states. Id.

Again, in 2000, EPA reached the same ultimate determination for similar reasons. EPA found 

that CCRs may pose risks to human health and the environment if they are not properly 

managed. 65 Fed. Reg. 32216. At the same time, however, EPA recognized that generally the 

regulatory infrastructure was in place at the state level to ensure that CCRs are adequately 

managed. Id. at 32217. Indeed, EPA recognized states were increasingly requiring liners and 

groundwater monitoring for CCR landfills and surface impoundments and that there was 

increased regulatory oversight of these facilities by states. Id. at 32216. In fact, the trends in 

disposal and utilization practices were identified by EPA as the first of three “decisive factors” in 

its decision not to regulate CCRs under subtitle C. Id. at 32215. EPA’s own statistics indicate 

that this factor remains valid today.

Based on the information presented in the 2000 joint EPA and United States Department of 

Energy (“DOE”) study, state regulation of CCR landfills and surface impoundments continues to 

improve. EPA & DOE, Coal Combustion Waste Management at Landfills and Surface 

Impoundments, 1994-2004, (Aug. 2006), at 

http://www.fossil.energy.gov/programs/powersystems/pollutioncontrols/coal_waste_report.pdf. 

(“EPA/DOE Report”).[Footnote 4: Although the EPA/DOE Report addressed only eleven states, 

those states represent approximately half of the CCRs generated in the nation. 75 Fed. Reg. 

35151.] As noted by EPA, with one exception, all new landfills and surface impoundments 

constructed between 1994 and 2004 were constructed with liners. 75 Fed. Reg. 35151. By way of 

comparison, from 1985 to 1995, seventy-five (75) percent of landfills and sixty (60) percent of 

surface impoundments were constructed with liners. EPA/DOE Report, at S-5. A similar increase 

was identified in relation to the number of landfills and surface impoundments constructed with 

groundwater monitoring systems. Ninety-seven (97) percent of landfills and nearly eighty (80) 

percent of surface impoundments constructed or expanded between 1994 and 2004 have 

groundwater monitoring systems. Id. Again, by way of comparison, eighty-eight (88) percent and 

sixty-five (65) percent of landfills and surface impoundments respectively, constructed between 

1985 and 1995, had groundwater monitoring systems. Id. at S-6. The EPA/DOE Report also 

found that the majority of states surveyed had tightened regulatory controls for liners, 

groundwater monitoring, and leachate collection since the time data was collected for the 1988 

EPA Report to Congress. Id. at S-8. 

Based on these findings, the EPA/DOE Report concluded that the “data and analyses documents 

in this report provide new information that appears to show improved management of [CCRs] in 

both landfills and surface impoundments.” Id. at S-11; see also, 75 Fed. Reg. at 35151 (stating 

that “[t]he results of the joint DOE and EPA study...indicate that of the states evaluated in this 
257

report, state regulations have generally improved since 2000. In addition it would appear that the 

industry itself is changing and improving its management practices.”) A recent survey conducted 

by the Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) 

also indicates that state regulation of CCRs continues to improve. Thirty-six (36) out of fortytwo (42) states that generate CCRs have permit programs for CCR landfills. Letter from 

ASTSWMO to Matt Hale (Apr. 1, 2009), EPA-HQ-RCRA-2009-0640-0024 (“ASTSWMO 

Survey”). Only three (3) states indicated that they do not have a permit program for CCR 

landfills, the remaining three (3) states did not respond. Id. Of the thirty-six (36) states that have 

CCR surface impoundments, twenty-five (25) stated that they have a permit program in place for 

these facilities. Id. Again, only three (3) states responded that they do not have a regulatory 

program for surface impoundments and eight (8) states did not respond. Id. In the Proposed 

Rules, EPA provided additional information from ASTSWMO, which indicates that fifteen states 

had revised their regulatory requirements for CCRs since 2000 and that eight (8) states now 

require groundwater monitoring that had not previously. 75 Fed. Reg. 35152.

It also is important to note that while some states may not have specific regulations for the 

disposal of CCRs, they do impose liner and groundwater monitoring requirements under separate 

regulatory authorities. Florida regulates CCRs as an industrial solid waste and many of the liner 

and groundwater monitoring provisions found in Florida’s approved subtitle D program are 

typically applied to CCR landfills and surface impoundments as part of the PPSA certification 

process and conditions of certification issued there under. See 75 Fed. Reg. 35152. Therefore, 

the actual number of states that are imposing liner and groundwater monitoring requirements 

may be higher than reflected in the survey. Regardless, based on the foregoing information 

alone, it appears that states with CCR landfills and surface impoundments are continuing to 

make improvements in the regulation of CCRs, and that industry is making improvements to 

CCR management practices.

The second “decisive factor” cited by EPA in its 2000 determination not to regulate CCRs under 

subtitle C was the current and potential utilization of CCRs. 65 Fed. Reg. 32215. EPA 

acknowledged industry concerns regarding the adverse impact that subtitle C regulation of CCRs 

may have on beneficial use rates and stated that it did not want to “place any unnecessary 

barriers” on beneficial uses of these materials. 65 Fed. Reg. 32217. At the time, approximately 

twenty-three (23) percent (roughly twentyeight (28) million tons) of CCRs generated each year 

were beneficially used. Id. at 32217. In 2008, approximately thirty-seven (37) percent (roughly 

50 million tons) of CCRs generated each year were beneficially used. ACAA, Coal Combustion 

Product Production & Use Survey Report, (2008) available at 

http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_

100509.pdf.; see also 75 Fed. Reg. 35151. This represents a fourteen (14) percent increase in 

beneficial use over roughly an eight year period.

Although EPA has proposed to exempt certain CCRs that are destined for beneficial use from 

subtitle C regulation, the mere fact that CCRs destined for disposal may be subject to subtitle C 

regulation has already impacted the beneficial use market. One FCG member has already 

received requests from clients seeking to renegotiate existing contracts and to reduce “minimum 

take” provisions (i.e., the minimum amount of CCRs they are obligated to accept) and to include 

new terms that make their contractual obligations contingent upon the outcome of this 
258

rulemaking. At numerous public hearings on the Proposed Rules, CCR marketers and members 

of the recycling industry have submitted testimony detailing the stigma associated with subtitle C 

regulation of CCRs destined for disposal and the impact it is and will have on their businesses. 

At the public hearing in Charlotte, North Carolina, several company representatives and 

individuals testified that they have already experienced cancelled contracts or renegotiated 

contracts based purely on EPA’s proposed rules and the mere possibility of subtitle C regulation. 

Others testified that they have been informed by major clients that they will no longer purchase 

products produced from CCRs if the disposal of CCRs is regulated under subtitle C. Clearly, the 

stigma associated with the potential regulation of CCRs destined for disposal under subtitle C is 

adversely impacting the beneficial use of CCRs. If adopted, the subtitle C option will likely 

devastate the beneficial use market for CCRs. Concerns regarding potential “barriers” to CCR 

beneficial use, therefore, are equally, if not more valid today than they were in 2000.

The third “decisive” factor was the Congressional admonition against duplication of efforts by 

other Federal and state agencies. 65 Fed. Reg. 32215. This admonition was recognized in 1993 

by EPA when it specifically found that subtitle C regulations, particularly the need to obtain a 

subtitle C permit, would unnecessarily duplicate existing state regulations. See 58 Fed. Reg. 

42477. If that was true then, it is certainly true today. As discussed more fully above, the

ASTSWMO survey found that the majority of states that generate CCR’s have permit programs 

in place for CCR landfills and surface impoundments. See 75 Fed. Reg. 35152. As EPA 

recognized, such permit programs are important to provide necessary regulatory oversight. Id. 

Therefore, the prevalence of such programs is a strong indicator that states are effectively 

regulating and overseeing the operation of CCR landfills and surface impoundments.

This trend was noted yet again in the 2000 Regulatory Determination, where EPA found that 

states had made substantial progress regulating the disposal of CCRs and the regulatory 

infrastructure was in place at the state level to ensure that CCRs are adequately managed. 65 Fed. 

Reg. 32217. The EPA/DOE Report and the ASTSWMO survey results both indicate that state 

regulation of CCR disposal has generally improved since then. 75 Fed. Reg. 35152. Therefore, in 

light of the increased state regulation of CCR landfills and surface impoundments, and the 

existence of state permitting programs, the admonition against duplication of state efforts is even 

more compelling now than it was in 2000.

The three decisive factors identified in 2000 as the basis for EPA’s affirmation that subtitle C 

regulation was unwarranted remain true today. Further, EPA has failed to provide any evidence 

indicating that state regulation of CCR disposal is not continuing to improve, that the beneficial 

utilization of CCRs will not be impacted by the subtitle C option, or that subtitle C regulation 

will not unnecessarily duplicate state regulations. Absent justification as to why these factors are 

no longer valid, adoption of the subtitle C option would be arbitrary and capricious. See Motor 

Vehicles Mfrs. Ass’n. v State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983) (finding that 

agencies “must examine the relevant data and articulate a satisfactory explanation for its action, 

including a "rational connection between the facts found and the choice made”)(internal 

quotations omitted). 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 
259

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10542-1

Organization1:U.S. House of Representatives

Commenter1: Randy Stewart

Commenter Type: Federal Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

1 . Such regulation is wholly unwarranted from an environmental perspective and is inconsistent 

with past EPA rulings on two occasions, in 1993 and again in 2000, the EPA has determined that 

coal ash should not be regulated as a hazardous waste under the RCRA's hazardous waste 

program. Nothing has changed regarding the nature of coal ash -it is the same product now as in 

1993 and in 2000. What has changed is that a TVA impoundment dam failed in December 2008, 

raising the awareness of how coal ash is stored. That was a structural issue with the dam itself - a 

totally separate issue from the composition of coal ash. There is no question that dam integrity 

must be assured for all impoundments, but this regulation does not address that issue

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. Contrary to the commenter’s statement, the rule does address structural 

integrity and the commenter can find the discussion of these provisions in Unit VI of the 

preamble and also in the regulatory text see specifically 257.73 – Structural integrity criteria for 

existing CCR surface impoundments and 257.74 – Structural integrity for new CCR surface 

impoundments and any lateral expansion. Structural integrity for surface impoundments is also 

addressed in the location criteria, the inspection requirements, and the hyrologic and hydraulic 

capacity requirements for CCR surface impoundments. 

Comment Number: TRANS-CHI-0125-2

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

In fact, there are some misinterpretations about determinations about coal ash in the past. In 

1993, when the EPA made a determination for Subtitle D, they did state that the current disposal 

practices at the time could cause health and environmental problems in the future, and they have. 

In 2000, the determination, the press release from the EPA, there has been a whole drumbeat of 

letters talking about how the EPA determines D, EPA determined that. But here I'll take a quote 

from what they determined in the year 2000 and the quote is from their press release. Their press 
260

release states that "If the states and industry do not take steps to address these wastes adequately 

in a reasonable amount of time, and if the EPA identifies additional risk to public health, EPA 

will revisit this decision," and this revisiting of the decision is not any bit too soon

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0127-1

Organization1:Duke Energy

Commenter1:Chris Hallman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

Duke Energy strongly supports the development of Federal regulations for coal combustion 

residuals under RCRA's Subtitle D non-hazardous waste program. We believe that regulation 

under Subtitle C is unwarranted and we're not the only ones who think so. 

EPA's own significant study and past rulemaking process also supports this approach. The 

development of Subtitle D regulations would be the appropriate outgrowth of EPA's two reports 

to Congress and two final regulatory determinations under the Bevill Amendment declaring that 

CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. 

Throughout EPA's 20 years of study, it has consistently found that the Subtitle D approach, with 

active state involvement, was the appropriate regulatory course for CCRs. In addition, various 

state and federal agencies, members of academia, and many others have studied CCRs for nearly 

three decades. These entities evaluated CCRs for toxicity levels and found them to be well below 

the criteria that would require a hazardous waste designation. 

First in its 1993 CCR Regulatory Determination and again in its second report to Congress in 

1999, EPA concluded that RCRA Subtitle D is more appropriate for addressing the limited 

human health and environmental risks that may be associated with disposal of these wastes. 

EPA reaffirmed the appropriateness of the Subtitle D option in its 2000 CCR regulatory 

determination, concluding that the Subtitle D regulations are the most appropriate mechanism for 

ensuring that CCRs disposed in landfills and surface impoundments are managed safely. EPA's 

decisive factors in reaching its final determination that CCRs do not warrant regulation as a 

hazardous waste include one, CCRs rarely exhibit a hazardous waste characteristic; two, trends 

demonstrate CCR disposal and utilization practices are improving; and three, the current and 

potential beneficial use of CCRs are important advantages

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0032-1

Organization1:Kentucky Department of Environmental Protection

Commenter1:Bruce Scott
261

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

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

management and beneficial reuse of coal combustion residuals within the state. We believe that 

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

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

Electrical generation in Kentucky uses approximately 42 million tons per year. Approximately 

10 million tons per year of CCR is generated in Kentucky. 

EPA has previously declared in its Report to Congress in 1988 and 1999 that coal combustion 

waste are high volume and low hazard and do not warrant regulation under Subtitle C. EPA 

regulatory findings published in 1993 and 2000 indicated that these wastes do not warrant 

regulation under Subtitle C as well. However, EPA's proposed rule is not consistent with those 

previous conclusions and the state does not see a technical basis for EPA's change of course in 

this proposed rule

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-LVL-0062-1

Organization1:Duke Energy

Commenter1:David Weiss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

We believe that regulation under Subtitle C is unwarranted both environmentally and 

economically, but Duke Energy strongly supports the development of reasonable federal 

regulations for coal-combustion residuals under EPA's Subtitle D non-hazardous waste program. 

And we are not the only ones who think so. EPA's own previous studies and past rule-makings 

also support this approach. 

The development of Subtitle D regulations would be appropriate outgrowth of EPA's two reports 

to the Congress and two final regulatory determinations under the Bevill Amendment declaring 

that CCRs do not warrant hazardous waste regulation under RCRA Subtitle C. 

Throughout EPA's 20 years of study, it has consistently found that Subtitle D approach with 

active state involvement was the appropriate regulatory course for CCRs. Various state and 

federal agencies, universities, and others have studied CCRs for nearly three decades. These 

entities evaluated CCRs for toxicity levels and found them to be well below the criteria that 

would be a required hazardous waste designation. First in its 1993 regulatory determination, and 

then again in its second report to Congress in 1999, and then again in 2000, EPA concluded that 

Subtitle D is more appropriate for addressing the limited human health and environmental risk 
262

that may be associated with the disposal of these wastes. 

The factors that EPA used in reaching its final determination that CCRs do not warrant 

regulation as hazardous waste include (1) CCRs rarely exhibit a hazardous waste classification; 

(2) recent trends demonstrate CCR disposal and utilization practices are improving; and (3) the 

current and potential beneficial use of CCRs are important advantages

Response: The Agency acknowledges and appreciates the comment. 

Section 2.1.5 - RCRA legislative history

Total Number of Submissions: 11

Total Number of Comments: 15

Comment Number: EPA-HQ-RCRA-2009-0640-06339-3

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4

Comment Excerpt Text:

2) Subtitle C Regulation violates the clear language and the legislative purpose of the Bevill 

Amendment to RCRA In 1980, Congress amended RCRA with the passage of the Bevill 

Amendment to ensure that EPA would not inappropriately subject CCRs to hazardous waste 

regulation. The amendment was intended to avoid the excessive costs associated with Subtitle C 

regulation of CCRs and to promote their beneficial use. In fact, the sponsors of the Bevill 

Amendment specifically stated their concerns regarding the fate of beneficial use of CCRs under 

Subtitle C regulation of CCRs. For example, Representative Bevill stressed that a primary 

purpose of his amendment was to support the “national commitment to encourage reuse of such 

materials as fly ash.”[Footnote 16: 126 Cong. Rec. at 3362.] Representative Findley advised that 

if CCRs were regulated under Subtitle C, the “flourishing industry which recycles these 

byproducts would be gravely disrupted and possibly closed down.”[Footnote 17: Id. at 3363.] 

Representative Harley Staggers stated bluntly that regulation of CCRs as a hazardous waste 

“would run counter to one of the principal designs of [RCRA] – conservation of valuable 

material.”[Footnote 18: Id. at 3364-65.]

The Bevill Amendment addressed these concerns by suspending EPA’s authority to regulate 

CCRs under Subtitle C of RCRA unless and until the Agency completed a study and reported to 

Congress on whether such regulation was warranted. With completion of the study and 

submission of the corresponding Report to Congress, the Bevill Amendment required EPA to 

make a final regulatory determination regarding whether CCRs should be regulated under 

Subtitle C.
263

The Bevill Amendment required the Agency to base this final regulatory determination “on 

information developed or accumulated pursuant to [the RCRA § 8002] study, public hearings, 

and comment. . . .”[Footnote 19: RCRA § 8002(n), 42 U.S.C. § 6982(n).] EPA submitted its first 

Report to Congress on March 8, 1988, concluding that fly ash, bottom ash, boiler slag, and flue 

gas emission control waste generally do not exhibit hazardous characteristics under RCRA. 

Accordingly, EPA stated that it did not intend to regulate those four large-volume coal 

combustion waste streams. The initial report went on to encourage the utilization of coal 

combustion wastes to the extent that such utilization could be done in an environmentally safe 

manner. Six months later, EPA reiterated in its first Regulatory Determination the conclusion 

that hazardous waste regulation was not warranted for those four large-volume coal combustion 

waste streams.

In short, EPA could only reach the decision to regulate CCRs under Subtitle C after following a 

statutorily prescribed series of steps that involved congressional oversight marked by EPA’s 

submission of reports to Congress that would inform the relevant congressional committees of

jurisdiction of the Agency’s preliminary recommendations. [Footnote 20: 58 Fed. Reg. at 

42477.]

The second Report to Congress, submitted in March 1999, again concluded that Subtitle C is 

inappropriate to address any problems associated with disposal of several other fossil fuel 

combustion wastes, including CCRs managed with certain low-volume wastes and that “the 

continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” In May 2000, EPA completed the Bevill Amendment’s statutorily 

prescribed assessment and reporting process when it issued its final Regulatory Determination 

for all remaining fossil fuel combustion wastes, including CCRs managed with certain lowvolume wastes.[Footnote 21: See 65 Fed. Reg. at 32214.] Echoing its first Regulatory 

Determination, EPA concluded that CCRs and other fossil fuel combustion wastes did not 

warrant regulation under RCRA’s Subtitle C hazardous waste program, determining instead that 

regulation as a non-hazardous solid waste under Subtitle D of RCRA would be appropriate when 

CCRs are disposed of in landfills or surface impoundments.[Footnote 22: Id.]

Because of their diverse natures, CCR disposal facilities are ill-suited to regulation under the 

Subtitle C hazardous waste program. In its final determination that CCRs should not be subject 

to Subtitle C regulation in 2000, EPA stated that “it is more appropriate for individual States to 

have the flexibility necessary to tailor specific controls to the site or region specific risks posed 

by these wastes.”[Footnote 23: See NRECA Comments to this 2010 Proposed Rule (citing 58 

Fed. Reg. at 41477).]

Response: The Agency acknowledges and appreciates the comment. The commenter is 
264

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06339-4

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

3) EPA’s proposed Subtitle C Option is arbitrary and capricious, an abuse of discretion, and 

otherwise not in accordance with the law The Administrative Procedure Act empowers courts to 

review “agency action, findings, and conclusions” if they are “arbitrary and capricious, an abuse 

of discretion, or otherwise not in accordance with law.”[Footnote 24: 5 U.S.C. § 706(2)(A).] 

Before taking an agency action, such as rule making, the agency is required to “examine the 

relevant data and articulate a satisfactory explanation for its action including a rational 

connection between the facts found and the choices made.”[Footnote 25: Motor Vehicle Mfrs. 

Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77

L.Ed.2d 443 (1983).] The court must then review that explanation and evaluate “whether the 

decision was based on a consideration of the relevant factors and whether there has been a clear 

error of judgment.”[Footnote 26: Id.]

A rule is arbitrary and capricious “if the agency has relied on factors which Congress has not 

intended it to consider, entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.”[Footnote 27: Id.]

In this case, EPA’s action in proposing a final rule contrary to its earlier final determination 

regarding the Bevill Wastes in its Report to Congress is, first of all, “not in accordance with 

law.” The Bevill Amendment directed the EPA to complete a study considering all the listed 

factors equally and then make a single determination whether the CCRs should be regulated 

under Subtitle C. Once EPA made this determination, it had no authority to institute a notice of 

proposed rulemaking, and a reviewing court is likely to rule against the EPA. The Bevill 
265

Amendment does not provide for a reconsideration of that determination more than 30 years after 

the statute was enacted and more than 20 years after EPA’s final determination (in 1988) that the 

Bevill Wastes should not be regulated under Subtitle C.

Moreover, “no provision of the Bevill Amendment assigns an absolute priority to any one 

[study] factor, including hazardousness.”[Footnote 28: See Environmental Defense Fund v. EPA, 

852 F.2d 1309, 1314 (D.C. Cir. 1988) (discussing the Bevill Amendment in the context of 

mining wastes). See also RCRA § 8002(n), 42 U.S.C. § 6982(n). (Congress mandated that the 

EPA Administrator should conduct a study evaluating the following eight factors and submit its 

findings in a Report to “the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives”: 1) the source and volumes of CCR materials generated per year; 2) present 

disposal and utilization practices; 3) potential danger, if any, to human health and the 

environment from disposal and reuse of such materials; 4) documented cases in which danger to 

human health or the environment from surface runoff or leachate has been proved; 5) alternatives 

to current disposal methods; 6)costs of such alternatives; 7) the impact of those alternatives on 

the use of coal and other natural resources; and 8) the current and potential utilization of such 

materials).] In fact, as pointed out by the District of Columbia Federal Court of Appeals in an 

analogous discussion of mining wastes, the legislative history “strongly suggests that Congress 

designed the Bevill Amendment to break with the previous approach to regulation of hazardous 

industrial wastes.”[Footnote 29: Environmental Defense Fund v. EPA, 852 F.2d at 1314] The 

D.C. Court of Appeals elaborated as follows:

With respect to ordinary industrial wastes, the structure of Subtitle C manifests a congressional 

assumption that these wastes, if found to be “hazardous” [under the criteria for identifying and 

listing wastes], would also prove dangerous to health and environment. A finding of a hazardous 

characteristic was sufficient to trigger regulation. See 40 C.F.R. §§ 261.11(a)(1). While the § 

8002(p) studies of [Bevill] wastes necessarily require an evaluation of hazardousness, the 

provisions mandating these studies nowhere mention “hazard.” In § 8002, Congress asks EPA to 

investigate risk or danger to human health and environment-a context-specific concept. This 

evinces a congressional understanding that “hazardous” [Bevill] wastes might not prove 

dangerous. This understanding was most clearly expressed in the Conference Report discussing 

the later 1984 HSWA, § 3004(x):

This amendment recognizes that even if some of the special study wastes are determined to be 

hazardous it may not be necessary or appropriate, because of their special characteristics or other 

factors, to subject such wastes to the same requirements that are applicable to other hazardous 

wastes, and that protection of human health and the environment does not necessarily imply the 

uniform application of requirements developed for disposal of other hazardous wastes. [See 

H.R.Conf.Rep. No. 1133, 98th Cong., 2d Sess. 93, reprinted in 1984, U.S.Code Cong. & 
266

Admin.News 5576, 5664.]

The legislative history of the Bevill Amendment confirms that Congress eschewed a narrow 

technical approach to imposition of Subtitle C controls, choosing to evaluate the need for 

regulations by [focusing] on the actual dangers posed by [Bevill] wastes. Congressman Bevill's 

discussion of the Amendment is replete with references to “the degree of hazard posed by these 

wastes” and the need to develop “meaningful regulation to deal with the truly hazardous waste 

products which threaten our communities.” 126 Cong.Rec. 3361 (Feb. 20, 1980) (remarks of 

Rep. Bevill) (emphasis added). The goal of the study of [Bevill] wastes was to “determine 

whether, if at all, these materials present any hazard to human health or the environment.” Id. 

(emphasis added). These and other passages make plain that, despite his use of the term 

“hazard,” Rep. Bevill was directing attention to the actual risk posed by the wastes. This 

approach is clearly at odds with EDF's interpretation of the statute as mandating Subtitle C 

regulation upon a finding of hazardousness.

The § 8002(p) study provision lists cost as an independent factor. During the discussion of the 

Amendment, Rep. Bevill stated, “[t]hese studies would include evaluation of the economic and 

environmental aspects of existing and alternative disposal and reuse options. EPA would also be

required to focus on the impact of these alternatives on the use of our coal and other natural 

resources.” 126 Cong. Rec. 3361. These remarks confirm that Congress intended attention to 

cost and the economic impact of regulatory controls in making a regulatory determination. The 

emphasis on economic factors is consistent with Congress' obvious goal in enacting the Bevill 

Amendment-to relieve the [Bevill-waste industries] of the onerous economic burden of stringent 

Subtitle C controls if at all possible. If [Plaintiff] deems undesirable separate consideration of the 

cost of regulation, this objection should be addressed to Congress and not to this court.[Footnote 

30: Environmental Defense Fund v. EPA, 852 F.2d at 1314-1316.]

Likewise, EPA’s focus on the alleged hazardousness of CCRs, without giving equal priority to 

the negative impact on the beneficial use of CCRs if regulated under Subtitle C, is in clear 

violation of the language and legislative intent of the Bevill Amendment, which was in part to 

relieve the utility industry “of the onerous economic burden of stringent Subtitle C controls if at 

all possible.”[Footnote 31: Id.]

Finally, if Congress had intended to give the EPA authority to promulgate regulations or make 

periodic reviews and adjustments to the level of regulation for CCRs without EPA first 

submitting the statutorily mandated report to Congress examining the eight statutory 

factors,[Footnote 32: See n.28, supra] Congress would have included such provision(s) in the 

statute as it did in other environmental quality statutes. For example, in the Clean Air Act, 
267

Congress directed the EPA to periodically review, revise, and publish air quality criteria for 

pollutants;[Footnote 33: 42 U.S.C. §7408] periodically review, revise, and publish the statutory 

list of hazardous air pollutants;[Footnote 34: 42 USC §7412(b)(2)] and at five year intervals, 

complete a thorough review of the criteria for pollutants published under section 7408 and the 

national ambient air quality standards promulgated under section 7409 and make such revisions 

as may be appropriate.[Footnote 35: 42 U.S.C. §7409(d)]

In the Clean Water Act, Congress directed the EPA to review and revise its published water 

quality standards from time to time;[Footnote 36: 33 U.S.C. §1314(a)] review its published 

regulations for effluent limitations annually and revise them if appropriate;[Footnote 37: 33 

U.S.C. §1314(b)] from time to time review, revise, and publish information on the processes or 

operating methods which result in the elimination or reduction of the discharge of 

pollutants;[Footnote 38: 33 U.S.C. §1314(c)] and from time to time, as technology and 

alternatives change, revise its published regulations establishing Federal standards of 

performance for new sources of pollution.[Footnote 39: 33 U.S.C. §1316]

For example, Arizona Electric Power Cooperative’s facility is regulated by the Arizona 

Department of Water Resources, the Dam Safety and Flood Mitigation Division, and the Arizona 

Department of Environmental Quality. Both agencies maintain rigorous compliance programs 

and conduct frequent inspections to ensure that applicable maintenance and safety standards, 

including groundwater monitoring are followed. The EPA also recently affirmed the structural 

integrity and proper operation of the impoundment through an independent assessment. This 

assessment resulted in a satisfactory rating at the AEPCO facility, which is the highest possible 

rating.

Because the Bevill Amendment was specific and limited in what it authorized the EPA to do and 

regarding Congress’ reasons for doing it the way it did, the EPA’s Proposed Rule is not in 

accordance with the law and is an abuse of the EPA’s discretion. Additionally, a court reviewing 

under the Administrative Procedures Act is likely to find EPA’s Proposed Rule arbitrary and 

capricious because EPA has failed entirely to consider important aspects of the problem; because 

EPA is relying on factors in a way in which Congress has not intended it to consider them; and 

because EPA has offered an explanation for its decision that runs counter to the evidence before 

the agency.

For example, EPA’s proposed rule (1) is inconsistent with the Bevill Amendment’s directive that 

any final determination not impair CCR beneficial use; (2) is at odds with Congress’s express 

directive that any regulatory program for CCRs not discourage the use of coal by imposing 

undue regulatory costs on the management of CCRs; (3) disregards the nearly unanimous views 
268

of the federal and state agencies, with which the Bevill Amendment directs EPA to consult in 

reaching a final regulatory determination, that Subtitle C regulation is not warranted for CCRs; 

(4) is inconsistent with EPA’s own findings that state programs can properly address CCR 

disposal practices under RCRA Subtitle D; and 5) inappropriately includes potential damage 

cases in its evaluation of the appropriate regulatory option for CCRs when the Bevill 

Amendment directs the Agency to evaluate only those instances where such danger has been 

proved when considering the “documented cases” of danger from the management of 

CCRs.[Footnote 40: See specific examples set out in NRECA’s Comments to this 2010 Proposed 

Rule, which are adopted and approved herein by reference.]

Because the EPA has relied on factors which Congress has not intended it to consider; entirely 

failed to consider important aspects of the problem; offered explanations for its decision that runs 

counter to the evidence before the EPA; and lacks the authority to reverse its 1993 and 2000 

Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation, 

a reviewing court would likely find any EPA final rule under which Bevill Wastes are regulated 

under Subtitle C to be arbitrary and capricious, an abuse of discretion, and otherwise not in 

accordance with the law.[Footnote 41: Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-13

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

In addition to the devastating impact that regulation under Subtitle C would have on the 

beneficial use of CCR, the Subtitle C option would constitute an impermissible reversal of 

EPA’s final 2000 Regulatory Determination that CCR does not warrant hazardous waste 

regulation. It would also be in direct contravention of RCRA’s plain language establishing an 

unambiguous statutory process by which EPA can determine whether and how to regulate CCR 

under RCRA. EPA is, at a minimum, obligated to adhere to the statutory procedures that 

Congress prescribed for making the original regulatory determination, including providing a 
269

Report to Congress setting forth its recommendation.[Footnote 6: Duke Energy refers EPA to the 

USWAG comments for a complete discussion of the legal and policy reasons why EPA cannot 

regulate CCR under the Subtitle C option.]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-20

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

C. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second 

Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment's Prescribed 

Process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory 

Determination for CCRs, the Agency would have to adhere to the statutorily-prescribed 

procedures that Congress demanded EPA to follow in determining whether and how to regulate 

CCRs. Even EPA has recognized this; in responding to Representative Markey’s inquiry to EPA 

about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency 

stated that it would be “advisable [for EPA] to go through the same process we followed” in 

issuing the 1993 and 2000 final Regulatory Determinations [Footnote 6: See Jan. 30, 2009 letter 

from EPA Acting Associate Administrator Joyce Frank to Rep. Edward Markey, Chair of the 

House Energy and Commerce Subcommittee on Energy and Environment.]. Despite what it 

advised Congress, EPA has strayed beyond the plain language of the statute by proposing to 

reverse its final Regulatory Determinations for CCRs without following the statutorily-required 

process it followed for issuing those determinations in the first instance.

As explained above, the Bevill Amendment requires that, before making any final regulatory 

determination for CCRs, EPA first must study CCRs pursuant to the eight statutory study factors 

and then “publish a report on such study, which shall include appropriate findings.” RCRA 

section 8002(n). The statute then directs that such “study and findings shall be submitted to the 

Committee on Environment and Public Works of the United States Senate and the Committee on 

Energy and Commerce of the United States House of Representatives.” Id. Following submission 

of the report to the appropriate Congressional Committees, the statute directs EPA to conduct 

“public hearings and opportunity for comment [on the report to Congress], and either determine 

to promulgate regulations” regulating CCRs under RCRA’s Subtitle C hazardous waste 

regulations “or determine that such regulations are unwarranted.” RCRA § 3001(b)(3)(C). 

Following this process, EPA was directed to publish its regulatory determination, “which shall 

be based on information developed or accumulated pursuant to such study, public hearings and 
270

comment in the Federal Register accompanied by an explanation and justification of the reasons 

for it.” Id.

Thus, prior to making any final regulatory determination for CCRs, the statute directs EPA to 

fully inform Congress of the Agency’s initial recommendation as set forth in the Report to 

Congress. This is not a mere procedural formality. As Representative Bevill emphasized when 

introducing his amendment, it was especially critical that EPA not make the final regulatory 

determination in isolation, but that Congress and relevant federal agencies be involved in the 

decision-making process. 126 Cong. Rec. at 3362. The multi-step decision-making process set 

forth in the Bevill Amendment, including the submission of a Report to Congress, was 

specifically designed to enable Congress and other federal agencies to “evaluate the basis of the 

Agency’s decision, and to address the question of what degree of regulation, if any, is 

appropriate” and ultimately to ensure that the final Regulatory Determination was consistent with 

the nation’s “commitment to develop a coherent and consistent policy toward the use of our coal 

and other energy resources.” Id.

Among other omissions, EPA has not prepared a Report to Congress informing the relevant 

congressional committees of jurisdiction which provide Congressional oversight in EPA’s Bevill 

Regulatory Determination process that the Agency intends to reverse course and regulate CCRs 

under RCRA Subtitle C. This is especially egregious given that the Reports to Congress that 

EPA did provide to Congress made clear that CCRs do not warrant regulation under RCRA’s 

Subtitle C hazardous waste program and that, therefore, EPA would not pursue this regulatory 

path. Now, more than ten years later, EPA is proposing to reverse that decision and issue a new 

Regulatory Determination for CCRs without explaining its reasoning to Congress as required by 

the statute, thereby cutting Congress out of the deliberative oversight role it reserved for itself 

prior to issuance of any final Regulatory Determination by EPA [Footnote 7: In fact, the primary 

deliberative process that EPA has engaged in with other federal agencies was during the Office 

and Management Budget (“OMB”) interagency review process of the draft proposal delivered to 

OMB by EPA that would have over turned the Agency’s earlier final Regulatory Determination 

where virtually all of the federal agencies review the Subtitle C option – including OMB, CEQ, 

Corps of Engineers, DOE, DOI (Bureau of Reclamation and Office of Surface Mining) DOT, 

TVA, and USDA opposed or sharply questions the Subtitle C option.]. 

The failure of EPA to prepare a Report to Congress outlining fully and comprehensively the 

Agency’s recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds 

with the plain language of the statute. This failure deprives Congress of its statutorily-prescribed 

right to be fully informed of any such recommendation so that it can evaluate and respond, as 

appropriate, to the Agency’s proposed course of action before EPA makes a final Regulatory 

Determination and develops federal regulations. For example, if EPA had recommended in the 

Reports to Congress that it did submit to Congress in 1988 and 1999 that the Agency’s 

recommendation was to regulate CCRs under RCRA Subtitle C, Congress could have informed 

EPA of its concerns and taken any number of steps, including legislative action, to ensure the 

final Regulatory Determination was consistent with the “national commitment to develop a 

coherent and consistent policy toward the use of our coal and other energy resources.” Id. 

Indeed, the very purpose of Congress requiring EPA to submit its Report to Congress was to 

ensure that any final Regulatory Determination appropriately reflect Congress’ intentions that 

any regulation of CCRs not discourage the development of coal as one of the national primary 

sources of energy. This is precisely the type of oversight role that Congress reserves for itself 

when requiring agencies to submit reports to Congress prior to taking regulatory action. See 
271

Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 319 (D.C. Cir. 1988) (“NRDC 

v. Hodel”) (in explaining Congress’ ability to respond to an agency report required to be 

submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention 

that the most representative branch is not powerless to vindicate its interests or ensure Executive 

fidelity to Legislative directives.”). Indeed, “congressional reporting statutes are a management 

tool employed by Congress for its own purposes[.]’“ College Sports Council v. Gov't 

Accountability Office, 421 F. Supp. 2d 59, 67 (D.D.C. 2006), citing, NRDC v. Hodel, 865 F.2d at 

319) [Footnote 8: See also generally James R. Bowers, “Regulating the Regulators” (1990); Joel 

D. Aberbach, “Keeping a Watchful Eye: The Politics of Congressional Oversight 132” (1990). 

For example, Congress can control agency action by writing more detailed legislation, by 

requiring staff investigations or field studies, or through agency reports required by Congress. 

See alsoUnited States v. S. Ind. Gas & Elec. Co., 2002 U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. 

Oct. 24, 2002) (noting that the purpose of Congress requesting an agency to report on a new rule 

was “was to provide a check on administrative agencies’ power to set policies and essentially 

legislate without Congressional oversight.”)]. In this case, EPA’s failure to prepare a Report to 

Congress regarding its proposal to regulate CCRs under RCRA’s hazardous waste program has 

completely eviscerated the statutory oversight role that Congress was to have in Bevill 

Amendment decision-making process for CCRs. 

Further, EPA’s failure to prepare and submit a Report to Congress violates the express terms of 

the statute that any final Regulatory Determination be based on public hearings and comments on

the Report to Congress. This requirement is not satisfied by the truncated and amended review of 

the Bevill Amendment’s statutory study factors presented by EPA in this proposal. The language 

of the statute and its legislative history could not be clearer: the Bevill Amendment provides that, 

following submission of its Report to Congress and public hearings and comment on the report, 

EPA was to publish its regulatory determination “which shall be based on information developed 

or accumulated pursuant to such study [i.e., EPA’s Report to Congress], public hearings and 

comment in the Federal Register accompanied by an explanation and justification of the reasons 

for it.” RCRA § 3001(b)(3)(C). As the Supreme Court stated in National Railroad Passenger 

Corp. v. National Association of Railroad Passengers (Amtrak), “[w]hen a statute limits a thing 

to be done in a particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 

(1974). 

Thus, even assuming EPA was authorized to render a new and revised Regulatory 

Determination, such determination must be preceded and predicated on a new Report to 

Congress. Even EPA has recognized that the any final Regulatory Determination must be 

predicated on the Report to Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed 

the Bevill statutory study factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he 

findings of these two Reports to Congress were the basis for our decisions in the August 1993 

and May 2000 Regulatory Determinations to maintain the Bevill exemption for CCRs.”).

Representative Bevill underscored the point that the public hearing and comment process was

intended to directly respond to EPA’s Report to Congress and that any final Regulatory 

Determination was to be based on the information resulting from that process: “Finally, let me 

direct the House’s attention to the fact that after EPA concludes these studies, it will be required 

to obtain public views on them and to make known whether, as a result of this process, EPA 

believes any regulation of these materials is necessary.” 125 Cong. Rec. 3362 (emphasis added). 

Consistent with the plain language of the statute and the accompanying legislative history, the 

D.C. Circuit has expressly held that the final Regulatory Determination be based on EPA’s 
272

Report to Congress. SeeEDF v. EPA, 852 F.2d at 1314) (“The statute clearly states that the 

agency is to base its regulatory determination on the information gathered for the § 8002(p) 

study”) [Footnote 9: The Section 8002(p) study refers to the EPA’s Report to Congress on 

certain mining wastes that also were subject to the Bevill Amendment. Importantly though, the 

D.C. Circuit’s decision is equally applicable to CCRs, as the statutory process for EPA issuing a 

final Regulatory Determination for mining wastes and CCRs is identical. See § RCRA 

3001(b)(3)(C) (referencing both the CCR § 8002(n) study and mining waste § 8002(p) study)].

Here, of course, there is no Report to Congress recommending that CCRs be regulated under 

RCRA Subtitle C. In fact, the Reports to Congress that EPA did submit reached just the opposite 

conclusion. EPA may believe that its abbreviated review of the Bevill statutory factors in the 

proposed rule is the functional equivalent to preparing and submitting a Report to Congress, but 

the Agency’s view is flawed for at least two reasons. First, such a position would be at direct 

odds with the plain language of the statute, which expressly commands that any final Regulatory 

Determination be based on the Report to Congress. Congress included this requirement in the 

Bevill Amendment to ensure that EPA fully and comprehensively explain its reasoning to 

Congress and that Congress have an oversight role in EPA’s issuance of the final Regulatory 

Determination.

Second, the statute does not authorize the Agency to collapse the Bevill Amendment’s statutory 

decision-making process into the more abbreviated exercise the Agency is undertaking here by 

combining a proposed reversal of its early final Regulatory Determinations with the proposed 

development of Subtitle C regulations for CCRs. As EPA candidly admits, the end result would 

be the issuance of a new final Regulatory Determination calling for Subtitle C regulation 

simultaneous with the issuance of the final Subtitle C regulations. This ignores the plain 

language and purpose of the Bevill Amendment.

Section 3001(b)(3)(C) of RCRA provides, in pertinent part, that after issuing and obtaining 

public input on its Report to Congress, EPA is to “either determine to promulgate regulations” 

for CCRs under RCRA Subtitle C “or determine that such regulations are unwarranted.” The 

Agency was then directed to publish its final determination in the Federal Register. Id. As the 

D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the terms 

‘determination]’ and ‘regulation[],’ . . . signifying that, consistent with the principle that effect 

must be given to each word of a statute, the two terms were intended to have distinct meanings.” 

American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996). Given this 

distinction, the sequence of actions directed by Section 3001(b)(3)(C) makes clear that the 

regulatory determination – whether or not to regulate CCRs under Subtitle C – was to be a 

separate and distinct step from the subsequent promulgation of any such regulations. This stepwise process is consistent with Congress’ directive to EPA, as reflected throughout the Bevill 

Amendment’s legislative history, the Agency was to employ a more deliberative, sequential 

process that involved public and congressional input on whether and how EPA should regulate 

CCRs in the first instance. Only after the Regulatory Determination has been issued does the 

statute contemplate EPA undertaking any appropriate rulemakings based on the Determination. 

For all the above reasons, even assuming EPA had the authority to revisit and reverse its final 

Regulatory Determination for CCRs, the Agency’s proposed Subtitle C option does not comport 

with the statutory process that Congress demanded EPA adhere to in determining whether and 

how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough 

studies demonstrating a clear need for regulation; provide to Congress a report detailing its 

findings on those studies; conduct public hearings and solicit comments on that Report to 
273

Congress, issue a final determination based on the report to Congress and public comment on 

that report regarding whether and how to regulate CCRs under RCRA. Congress did not 

painstakingly craft such mechanisms into the statute for its own amusement, and EPA is not at 

liberty to ignore such clear congressional intent

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08241-4

Organization1:Revolutionary Plastics, LLC

Commenter1: Steven G. Barringer and Tasha M. Newland, Holland & Hart LLP, on behalf of 

Revolutionary Plastics

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

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

RULE 

EPA’s proposed rule would do something EPA has never done before: it would revoke Bevill 

Amendment status for wastes that EPA has already studied, and for which EPA has already 

determined that Subtitle C hazardous waste regulation was inappropriate. EPA’s proposal is a 

misreading of its legal authority under RCRA. Significantly, in previous rulemakings and in the 

D.C. Circuit Court of Appeals, EPA argued against the very position it takes now. [Footnote 24: 

See 54 Fed. Reg. 36,592 (September 1, 1989) (preamble to final mineral processing rule); 54 

Fed. Reg. 15,316 (April 17, 1989) (preamble to revised proposed mineral processing rule); 53 

Fed. Reg. 41,288 (October 20, 1988) (preamble to proposed mineral processing rule); Solite 

Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991); see also discussion at pages 15-18 below.] 

However, in the preamble to the proposed rule, EPA neither acknowledges nor justifies its aboutface. EPA’s failure to explain this change is by itself fatal to the proposed rulemaking. 

EPA’s only justification for proposing to revoke the Bevill-exempt status of these wastes is a 

reference to the May 2000 Regulatory Determination in which EPA stated the Agency would 

continue to review the issues, and would reconsider its decision that Subtitle C regulations were 

unwarranted based on a number of specifically identified factors, and that such reconsideration 

could result in a subsequent revision to the Regulatory Determination. [Footnote 25: 75 Fed. 

Reg. at 35,137.] However, neither the 2000 Regulatory Determination nor the proposed rule 

present any justification or support for EPA’s assertion that it has the legal authority to 

continually revisit Bevill determinations. Furthermore, EPA’s statement in the May 2000 

Regulatory Determination is similar to other statements EPA has made in other RCRA 
274

rulemakings and is essentially just a place-saver for future action. Finally, EPA’s statement in the 

2000 Regulatory Determination and EPA’s proposed rule are both contradictory to EPA’s prior 

position in Solite Corp. v. EPA [Footnote 26: 952 F.2d 473 (D.C. Cir. 1991).], as discussed more 

fully below. 

A. The Bevill Amendment provides EPA Limited and One-Time Authority to Study and 

Determine the Appropriate Regulatory Scheme for CCRs 

The idea for the substance of the Bevill Amendment came from EPA itself. When EPA first 

proposed RCRA Subtitle C regulations in 1978, it solicited comments on a flexible alternative 

regulatory scheme for large-volume/low toxicity solid wastes, or “special wastes,” including 

CCRs. [Footnote 27: 43 Fed. Reg. 58,946, 59,015 (December 18, 1978).] By 1980, however, 

when the RCRA rules were promulgated, EPA had decided the special waste concept was 

unnecessary. [Footnote 28: 45 Fed. Reg. 33,084 (May 19, 1980). ] Special waste generators 

sought help from Congress, and Congress enacted the Bevill Amendment in October 1980, just

before the RCRA rules became effective. [Footnote 29: Pub. L. No. 96-482, codified at 42 

U.S.C. §§ 6921(b)(3)(A), 6982(n) (study requirements for CCRs). The legislation is referred to 

as the Bevill Amendment because it was sponsored in the House of Representatives by Rep. 

Thomas Bevill of Alabama.] 

For CCRs (and for the other “special wastes”), the Bevill Amendment required EPA to undertake 

a “detailed and comprehensive study” of the wastes and to prepare and submit a Report to 

Congress presenting the conclusions of the study. [Footnote 30: Id] EPA was supposed to 

complete the CCR Report by October 21, 1982.[Footnote 31: As EPA acknowledges in the 

preamble, it missed this deadline. EPA subsequently prepared two CCR studies, and two 

regulatory determinations, in compliance with court-ordered deadlines. In both cases, EPA 

determined that Subtitle C regulation was not warranted, and announced that it would 

promulgate national management standards for CCRs under RCRA Subtitle D. 75 Fed. Reg. at 

35,137. However, EPA never proposed or adopted any Subtitle D standards.] Then, based on the 

study results, and after public meetings and opportunity to comment, EPA was to make a 

“regulatory determination,” deciding whether Subtitle C hazardous waste regulation of CCRs 

was warranted. Meanwhile, the Bevill Amendment provided a temporary exemption from RCRA 

Subtitle C regulation for CCRs, until at least six months after EPA completed the required study, 

report to congress and regulatory determination. [Footnote 32: 42 U.S.C. § 6921(b)(3)(A)(i).] 

A common-sense reading of these statutory provisions compels the conclusion that they describe 

a one-time study and regulatory decision making process. Congress ordered EPA to undertake a 

study and determine how to regulate “special wastes,” and it provided a temporary exemption 

from RCRA requirements until these actions were complete. There is no hint in the statute that 

Congress intended for EPA to revisit Bevill determinations periodically, or ever, for that matter. 

The Bevill Amendment instead was a fix to what Congress adjudged to be regulatory 

overreaching on EPA’s part. 

B. EPA Itself has interpreted the Bevill Amendment as a “One-Time” Congressional Authority 

In fact, it is not necessary to apply statutory construction principles, to parse the legislative 
275

history, or to guess what Congress meant when it adopted the Bevill Amendment. In the past, 

EPA has clearly and repeatedly interpreted the Bevill Amendment as a one-time grant of 

authority. Before the Agency can take action on the proposed rule, it must, at a minimum, 

disclose this regulatory record and offer justification for departing from it. 

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

processing wastes.” [Footnote 33: 53 Fed. Reg. 41,288 (October 20, 1988).] In the preamble to a 

revised proposed rule, published in April 1989, EPA responded to comments that it should be 

prepared to undertake Bevill studies and make regulatory determinations on mineral processing 

wastes that might be generated in the future: 

Both the administrative record and congressional intent clearly indicate that the Bevill 

Amendment was intended to provide a temporary exclusion, pending further study, over a fixed 

time period. Congress directed EPA to conduct a single study of wastes generated by mineral 

mining and processing facilities, because of concern that existing wastes might not be readily 

amenable to Subtitle C controls and might pose relatively low hazard to human health and the 

environment. Moreover, contrary to some commenters’ assertions, the statutory language 

includes explicit time limits on the Bevill exclusion, which apply to the submission of the 

required Report to Congress and subsequent regulatory determination. [Footnote 34: 54 Fed. 

Reg. at 15,338.] 

EPA reiterated its position on this subject in the preamble to the final rule. [Footnote 35: 54 Fed. 

Reg. 36,592 (Sept. 1, 1989).] The statutory language applicable to CCRs is identical in all 

significant respects to the language governing the Bevill study of mineral processing wastes. 

The final mineral processing rule – including EPA’s position about the one-time nature of its 

Bevill authority – was challenged in Solite Corp. v. EPA. [Footnote 36: 952 F.2d 473 (D.C. Cir. 

1991).] EPA continued to argue to the court that its Bevill authority was limited to a one-time 

study and determination of Bevill status: 

This decision followed from EPA’s reading of congressional intent based on the statutory 

language and scheme of sections 3001(b)(3) and 8002(p) of RCRA, which establish a temporary 

exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to 

study new waste streams. EPA’s construction was also based on other indicia, such as the strict 

statutory time periods governing the mineral processing waste exclusion ... in RCRA. [citations 

omitted]. From this evidence of congressional intent, EPA reasonably determined that Congress 

authorized EPA to make a one-time interpretation or snapshot of mineral processing wastes, 

rather than a continuing series of studies and regulatory determinations.... [Footnote 37: 

Respondent’s Brief, Solite v. EPA, at 68 (May 8, 1991).] 

The Solite court agreed, concluding:

The statutory provision directing EPA to study Bevill wastes suggests by its terms that a onetime study is sufficient. ... 

In any event, this court’s holding in [Environmental Defense Fund v. EPA, 852 F.2d 1316, (D.C. 
276

Cir. 1988)] secures EPA’s position that a one-time determination is sufficient. There we 

interpreted the Bevill Amendment as an exclusion specifically for “the category of wastes 

designated as ‘special wastes [] ... in EPA’s 1978 proposed hazardous waste regulations.” 

[citations omitted]. While we did not go so far as to foreclose Bevill status for a future waste that 

might satisfy a pre-set criterion, we clearly enough rejected the theory that Congress intended the 

coverage of the Bevill exclusion to evolve with time. [Footnote 38: 953 F.2d at 491.] 

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

proposed rulemaking. Yet, it is inescapable that EPA’s current position is irreconcilable with its 

past interpretation of the statute. EPA does nothing in the proposed rule to come to terms with 

these inconsistencies. 

EPA – in justification of its current proposal – may not simply argue that the past interpretation 

was in a preamble, was at the most guidance, and does not bind the Agency. The regulatory 

scope of the mineral processing rule is based on what EPA maintained in the Solite litigation was 

its expert legal interpretation of its responsibilities under the Bevill Amendment. EPA 

maintained the legal position in court and won. It will not do now for EPA to entirely ignore its 

past pronouncements on this issue, as if they never happened. [Footnote 39: See Williams Gas 

Processing-Gulf Coast Co. v. Federal Energy Regulatory Commission, 475 F.3d 319, 326 (D.C. 

Cir. 2006) (noting that “[r]easoned decisionmaking necessarily requires consideration of relevant 

precedent” and “agency action must either be consistent with prior action or offer a reasoned 

basis for its departure from precedent” (citations omitted); Mobile Oil Corp. v. Environmental 

Protection Agency, 871 F.2d 149 (D.C. Cir. 1989) (holding that EPA’s regulatory approach 

represented a change in agency policy, but that EPA acknowledged that change and cogently 

explained the reasons for it). ] 

EPA also may not find justification in a narrow reading of the Solite court’s opinion. It is true 

that the court held only that EPA could decide only to conduct a single Bevill study for mineral 

processing wastes. However, EPA argued much more than that in its submissions to the court: 

EPA took the position that Congress only gave it the authority to make Bevill determinations 

once. In dicta interspersed with its holding, the court agreed, suggesting that EPA’s reading of 

the Bevill Amendment as limited to a one-time exercise was a reasonable one. [Footnote 40: 952 

F.2d at 491.] EPA now has an obligation to explain these past pronouncements and to justify its 

departure from this interpretation of its Bevill Amendment authority. 

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

Conduct the Required Bevill Study 

Even if EPA had the authority it claims to revisit Bevill determinations, it would have to do so in 

compliance with the terms of the Bevill Amendment. As already explained above, the first (and 

mandatory) step of the Bevill Amendment is to conduct a detailed and comprehensive study of 

the exempt wastes. EPA has not conducted the study, and cannot list CCRs as hazardous wastes 

until it complies with that requirement and the other requirements of the Bevill Amendment. 

EPA does not address this failure, and neglects even to mention the study requirement as a 

prerequisite to any decision to revoke Bevill-exempt status. But the requirement is clear, and 
277

stands in the way of EPA’s proposed CCR listing. 

EPA’s proposed rule does not satisfy the Bevill study requirement. As explained above, RCRA 

requires a detailed and comprehensive study, and provides a list of eight study factors that must 

be addressed. [Footnote 41: See Section I.V.A., above.] In the Proposed Rule, EPA discusses 

each of the eight Section 8002(n) study factors and evaluates them based on the data on which it 

made the May 2000 Regulatory Determination “as well as the most recent data available.” 

[Footnote 42: 75 Fed. Reg. at 35,151.] However, this analysis does not meet the statutory 

requirement to “conduct a detailed and comprehensive study and submit a report on the adverse 

effects on human health and the environment, if any, ... to the Committee on Environment and 

Public Works of the United States Senate and the Committee on Energy and Commerce of the 

United States House of Representatives.” [Footnote 43: 42 U.S.C. § 6982(n).] If EPA wishes to 

revise its analysis of the eight study factors with regard to whether to regulate CCWs under 

Subtitle C, it must comply with the statutory duty to prepare a revised Report to Congress. 

EPA does acknowledge the study factors in the preamble (but not the requirement to conduct a 

new study), and notes that it will carefully consider all comments submitted in response to the 

proposed rule. [Footnote 44: 75 Fed. Reg. at 35,133.] At best, this amounts to no more than lip 

service to the study requirement. Asking for comment in a rulemaking process is not equivalent 

to the active undertaking of a “detailed and comprehensive study,” as the statute requires. 

Otherwise, the quality and completeness of EPA’s study would depend entirely on the comments 

submitted by stakeholders. This passive approach is certainly not what Congress intended for 

EPA to do to satisfy the Bevill study requirement. 

EPA also cannot claim that the ongoing research being conducted by EPA’s ORD satisfies the 

Bevill study requirement. First and foremost, the four ORD studies are not complete, as EPA 

acknowledges. [Footnote 45: Id. at 35,139.] EPA describes the ORD research as “ongoing.” 

[Footnote 46: Id] Furthermore, EPA notes that the research conducted to date has generated a 

substantial amount of data and that such data “can be useful as a reference for assessing 

additional CCR samples in the future.” [Footnote 47: Id] The database containing the full dataset 

is presented as a “Beta” version, and may be further developed. [Footnote 48: Id] Even if the 

studies were completed, they would not fulfill the Bevill study requirements EPA must meet 

before it reverses a Bevill determination because the reports produced to date do not address all 

of the study factors required by statute.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-2

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company
278

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

A. EPA Must Satisfy Both The Bevill Amendment And Regulatory Standards For Subjecting A 

Solid Waste (Or Category Of Solid Wastes) To Subtitle C’s Requirements

EPA suggests in the Proposed Rule that it is not proposing to regulate CCRs as hazardous waste 

because it is not going to call them hazardous, but rather is going to create a new category of 

“Special Wastes” that will erase all of the stigma associated with a hazardous waste listing 

decision. This justification defies logic and is purely an exercise in semantics. It is common 

knowledge that the express purpose of RCRA Subtitle C is to regulate hazardous waste, as 

evidenced by its title – “Hazardous Waste Management.”[Footnote 7: See Title 42 (“The Public 

Health and Welfare”), Chapter 82 (“Solid Waste Disposal”), Subchapter III (“Hazardous Waste 

Management”).] Thus, regardless of the name assigned to a specific waste (or group of wastes), a 

decision to regulate such material under Subtitle C is predicated on an EPA determination that 

those wastes satisfy RCRA’s definition of hazardous waste [Footnote 8: 42 U.S.C. § 6921(b).]. 

EME submits, for the reasons set forth below, that EPA’s proposal has not satisfied this 

requirement.

The Bevill Amendment factors supplement the RCRA hazardous waste criteria, and EPA must 

satisfy both standards before listing CCRs destined for disposal as a hazardous waste under 

Subtitle C. While the Proposed Rule briefly attempts to explain why CCRs as a group satisfy the 

requirements of 40 C.F.R. § 260.11 for subjecting a waste to RCRA Subtitle C,[Footnote 9: 75 

Fed. Reg. at 35,166-73.] EPA devotes a large portion of the preamble to explaining the Agency’s 

reconsideration of its prior Bevill determinations for CCRs, which suggests a belief by the 

Agency that the Bevill factors are somehow the only standard determinative of whether CCRs 

should be listed under Subtitle C [Footnote 10: Id. at 35149-66 (discussion of the Agency’s 

Bevill determination). EPA dedicated approximately 18 pages to its discussion of the Bevill 

determination, but only 8 pages to its discussion of the criteria for listing CCRs as a “special 

waste.” Compare id. at 35,149-66 with id. at 35,166-73.]. To the extent it is the Agency’s 

conclusion that the Bevill Amendment supplants the criteria for regulating CCRs under Subtitle 

C, that belief is misplaced and contrary to RCRA and the applicable regulations.

In order to be subject to the requirements of Subtitle C, a solid waste must satisfy the criteria for 

listing as a “hazardous waste” as that term is defined by the statute and regulations [Footnote 11: 

42 U.S.C. § 6921, et seq.; 40 C.F.R. § 261.1]. The criteria for determining whether a solid waste 

is a hazardous waste include “toxicity, persistence, and degradability in nature, potential for 

accumulation in tissue, and other related factors such as flammability, corrosiveness, and other 

hazardous characteristics.”[Footnote 12: 42 U.S.C. § 6921(a); 40 C.F.R. § 260.11.]. If a solid 

waste is not a hazardous waste, then it can only be subject to Subtitle D’s requirements. Congress 

did not eliminate that requirement when it modified RCRA in 1980 with the Bevill 

Amendment—it supplemented that requirement with the Bevill factors.

The Bevill Amendment revised Subtitle C to expressly prohibit the regulation of “fly ash waste, 

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

combustion of coal or other fossil fuels”[Footnote 13: 42 U.S.C. § 6921(b)(3)(A) (these CCR 

wastes are not subject to regulation as a hazardous waste “until at least six months after the date 

of submission of the applicable study required to be conducted under [section 8002(n)] . . . .”).] 
279

until after completion of a study by EPA considering the “adverse effects on human health and 

the environment, if any, of the disposal and utilization of fly ash waste, bottom ash waste, slag 

waste, flue gas emission control waste, and other byproduct materials generated primarily from 

the combustion of coal or other fossil fuels.”[Footnote 14: Id. § 6982(n). This study must include 

an analysis of: “(1) the source and volumes of such material generated per year; (2) present 

disposal and utilization practices; (3) potential danger, if any, to human health and the 

environment from the disposal and reuse of such materials; (4) documented cases in which 

danger to human health or the environment from surface runoff or leachate has been proved; (5) 

alternatives to current disposal methods; (6) the costs of such alternatives: (7) the impact of those 

alternatives on the use of coal and other natural resources; and (8) the current and potential 

utilization of such materials.” Id.] However, that study alone is not sufficient to justify a CCR 

listing, but rather EPA must satisfy both the Bevill Amendment requirements and the 

Administrator must still make the applicable RCRA hazardous waste regulatory determinations –

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

waste—to subject those wastes to regulation as hazardous wastes under Subtitle C.[Footnote 15: 

Id. § 6921(b)(3)(A), (C) (“Not later than six months after the date of submission of the applicable 

study . . . the Administrator shall, after public hearings and opportunity for comment, either 

determine to promulgate regulations under this subtitle for each waste listed in subparagraph (A) 

of this paragraph or determine that such regulations are unwarranted. The Administrator shall 

publish his determination, which shall be based on information developed or accumulated 

pursuant to such study, public hearings, and comment, in the Federal Register accompanied by 

an explanation and justification of the reasons for it.”).

The statute also provides that if the Administrator decides to list CCRs as hazardous waste, the 

Administrator may modify some of the requirements to account for the special characteristics of 

these wastes. Under 42 U.S.C. § 6924(x) if the Administrator determines to regulate CCRs under 

Subtitle C, “the Administrator is authorized to modify the requirements of subsections (c), (d), 

(e), (f), (g), (o) and (u) and section 3005(j), in the case of landfills or surface impoundments 

receiving such solid waste, to take into account the special characteristics of such wastes, the 

practical difficulties associated with implementation of such requirements, and site-specific 

characteristics, including but not limited to the climate, geology, hydrology and soil chemistry at 

the site, so long as such modified requirements assure protection of human health and the 

environment.”

Significantly, these special provisions governing CCRs described in notes 13 to 15 and 

accompanying text are in addition to—not instead of—the criteria that must be met to list a 

substance as hazardous waste.}

As Congress explained at the time, the Bevill amendment was motivated by a concern “that EPA 

may be hastily classifying wastes as hazardous and imposing burdensome costs on businesses 

without proper or sufficient data to support their classification.”[Footnote 16: 126 Cong. Rec. 

3361, 3346 (Feb. 20, 1980) (Rep. Traxler - MI).] Congress was concerned that a hasty decision 

“to treat these relatively harmless byproducts as special hazardous wastes subject to stringent 

regulation will only hasten the decline of the coal industry” in the U.S.[Footnote 17: Id. at 3361 

(Rep. Bevill - AL).] Motivated by the concerns about maintaining coal as the primary domestic 

source of energy, reducing reliance on foreign energy sources, and avoiding unreasonable and 

burdensome regulatory requirements, Congress imposed the Bevill Amendment’s study 

requirements on EPA to ensure that the Agency adequately studied CCRs prior to making a 

determination as to whether they were subject to Subtitle C’s requirements. As Rep. Staggers 
280

(WV) explained “[t]his amendment continues to subject specified byproducts of fossil fuel 

combustion, coal mining wastes and other so-called special wastes to existing regulatory 

programs under presently applicable Federal and State laws, but would preclude, until after 

completion of the required study and rulemaking, any EPA regulation of these wastes under 

[S]ubtitle C of RCRA.”[Footnote 18: Id. at 3365 (Rep. Staggers - WV).]

Put simply, the Bevill Amendment was designed to force EPA to slow down and take more 

deliberate action based on sufficient data to support any regulatory action with respect to CCR 

materials; it did not eliminate the fundamental RCRA requirement that EPA identify those 

wastes that are hazardous based on specific characteristics before subjecting them to Subtitle C. 

It does not give EPA special authority to circumvent Subtitle C’s requirements through the 

creation of a new category of “special waste.” As EPA admits “solid wastes may [only] become 

subject to regulation under subtitle C of RCRA in one of two ways...[;] a waste may be subject 

to regulation if it exhibits certain hazardous properties..., or if EPA has specifically listed the 

waste as hazardous.”[Footnote 19: 75 Fed. Reg. at 35,135 (internal citations omitted).] Thus, just 

because the Agency wants to call CCRs a “special waste”, it still has to determine whether or not 

they are hazardous and address the Bevill factors in order to subject them to regulation under 

Subtitle C; as explained in the subsections below, the Agency has not satisfied that requirement 

substantively or legally

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08785-6

Organization1:USC Technologies, LLC

Commenter1: Sarah Toevs Sullivan

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. Procedural History

Section 300 I(b)(3)(A) of RCRA, known generally as the "Bevill exemption," established a 

preliminary exemption for fly ash, bottom ash, slag and flue gas emission control material 

generated primarily by the combustion of coal or other fossil fuels, and required EPA to conduct 

a study of those wastes and, after public hearings and an opportunity for comment, determine 

whether they should be regulated pursuant to Subtitle C of RCRA. At issue in the Proposed Rule 

is the retention of this exemption. Section 8002(n) sets forth the requirements for an analysis 

based on certain enumerated factors, including the current and potential utilization of such 

materials. Section 3001(b)(3)(C) of RCRA requires EPA to determine, after public notice and 

comment, whether to promulgate regulations under Subtitle C or rule that such regulations are 

unwarranted. Section 3004(x) of RCRA authorizes EPA to tailor certain requirements for 
281

particular categories of waste, including fly ash, bottom ash generated from the combustion of 

coal, taking into account the special characteristics of the wastes, the practical difficulties 

associated with implementation of such requirements, and site-specific characteristics, including 

but not limited to the climate, geology, hydrology and soil chemistry at the site, so long as such 

modified requirements assure protection of human health and the environment.

In 1993, following litigation and a consent decree, EPA published its Regulatory Determination 

for fly ash, bottom ash, boiler slag and flue gas emission control wastes from the combustion of 

coal by electric utilities and independent commercial power producers, concluding that 

regulation under Subtitle C of RCRA was not warranted. In 2000, EPA issued a second 

Regulatory Determination on large volume coal combustion wastes generated at electric utility 

and independent power producers, coal combustion wastes generated at non-utilities, and certain

other fossil-fuel combustion wastes (the "2000 Determination"). In its 2000 Determination, EPA 

concluded that the Bevill exemption should be retained for these "remaining wastes." 

Specifically, EPA stated "we believe, on balance that the best means of ensuring that adequate 

controls are imposed where needed is to develop national Subtitle D regulations. As we develop 

and issue the national regulations, we will try to minimize disruptions to operation of existing 

waste management units." 65 Fed. Reg. 32216.

In its determinations, EPA carefully considered and expressly rejected regulations of these 

wastes under Subtitle C of RCRA, in part in response to concerns that subjecting coal 

combustion waste to Subtitle C regulation would place a significant stigma on these wastes and 

would adversely impact beneficial reuse. "We do not wish to place any unnecessary barriers on 

the beneficial uses of these wastes, because they conserve natural resources, reduce disposal 

costs and reduce the total amount of waste destined for disposal." Id at 32231. Beneficial uses 

expressly determined by EPA to not warrant Subtitle C regulation included waste stabilization, 

beneficial construction applications (e.g., cement, concrete, brick and concrete products, road 

bed, structural fill, blasting grit, wall board, insulation, roofing materials), and other applications. 

This decision was supported by EPA's findings that "(a) We have not identified any beneficial 

uses that are likely to present significant risks to human health or the environment; and (b) no 

documented cases of damage to human health have been identified." Id at 32229.

The Proposed Rule reassesses those earlier rulings and presents three alternatives to regulation of 

CCRs. The first alternative proposes to reverse the Bevill exemption for "CCRs from electric 

utilities and independent power producers when destined for disposal in a landfill or surface 

impoundment," and to list them as a "special waste." 75 Fed. Reg. 35133/3. Listing CCRs as a 

"special waste" places them under RCRA Subtitle C "cradle to grave" hazardous waste 

regulations. Id.

The second alternative proposes to retain the Bevill exemption for CCRs with additional 

regulation under RCRA Subtitle 0 for CCRs that are disposed in surface impoundments or 

landfills. Id. The proposed Subtitle 0 regulations would subject disposal units to location 

standards, liner requirements for new and existing impoundments, groundwater monitoring, 

closure and post-closure care requirements, and requirements to ensure the stability of surface 

impoundments. Id at 35133-35145. The third alternative, "0 Prime," also proposes to retain the 

Bevill exemption but with less restrictive regulation under RCRA Subtitle D that would allow 

existing surface impoundments to continue to operate for their useful life without retrofitting. Id.

Response: The Agency acknowledges and appreciates the comment. 
282

Comment Number: EPA-HQ-RCRA-2009-0640-08844-11

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

B. Even if EPA was Authorized to Reverse its 1993 and 2000 Regulatory Determinations, EPA 

has Failed to Comply with the Statutorily-Mandated Bevill Process

In the proposed rule, EPA states that it "is reevaluating its August 1993 and May 2000 Bevill 

Regulatory Determinations regarding CCRs generated at electric utilities and independent power 

producers." 75 Fed. Reg. at 35,148. Even if EPA had the authority to reverse its August 1993 and 

May 2000 Bevill Regulatory Determinations, which it does not as demonstrated above, EPA has 

failed to go through the Bevill process before proposing a reversal of the Bevill Regulatory 

Determinations, and therefore cannot proceed with its Subtitle C option.

As stated above, the Bevill process as established by Congress must include each of the 

following steps:

1) EPA must study CCRs pursuant to the eight study factors;

2) EPA must then submit a Report to Congress, i.e., a report on such study and the findings of 

the study to the House Committee on Energy and Commerce and the Senate Committee on 

Environment and Public Works; and

3) Following submission of the Report to Congress to the enumerated congressional committees, 

EPA must conduct public hearings and provide an opportunity for comment on the Report, and 

then either determine to promulgate regulations under Subtitle C or determine that such 

regulations are not warranted.

4) If EPA determined that such regulations were warranted, then engage in a notice and comment 

regulation to promulgate the regulations. 

EPA has failed to comply with this special Bevill process. First, its purported analysis of the 

eight Bevill study factors as applied to CCRs is insufficient and superficial. Among other things, 

EPA is explicitly required to evaluate the "costs of alternatives" to current disposal methods. 

EPA's evaluation of the costs to the industry of the Subtitle C options in the proposed rule is 

woefully lacking in scope and depth.

Moreover, EPA has not even attempted to argue that it has met the Report to Congress prong of 

the Bevill process. Prior to EPA's proposal to reverse its 1993 and 2000 Regulatory 

Determinations and adopt a Subtitle C approach for CCRs, EPA has not prepared a Report and 
283

did not submit a Report to the enumerated Congressional committees before proposing to reverse 

its Regulatory Determinations in the proposed rule.

In addition, EPA's proposal to reverse its 1993 and 2000 Regulatory Determinations is not based, 

as explicitly required by statute, on public hearings and public comment on the non-existent 

Report to Congress. Therefore, EPA has not met its statutory obligation which conditions any 

Regulatory Determination on an evaluation of the results of such public hearings and any 

comments on the Report to Congress. See EDF, 852 F. 2d. at 1314. ("The statute clearly states 

that the agency is to base its regulatory determinations on the information gathered for the § 

8002(p) [the extraction, beneficiation and processing waste] study").

The legislative history supports this reading. Representative Bevill, the sponsor of the statutory 

amendment that bears his name, stated explicitly that any EPA regulatory determination would 

be based in part on the public hearings and any comments that were submitted on the Report to 

Congress. "Finally, let me direct the House's attention to the fact that after EPA concludes these 

studies, it will be required to obtain public views on them and to make known whether as a result 

of this process EPA believes any regulation of these materials is necessary." 126 Congo Rec. at 

3362.

Finally, EPA's proposed rule envisions a decision-making process involving the simultaneous 

reversal of the prior Regulatory Determination for CCRs, the issuance of a new regulatory 

determination for CCRs, and the adoption of new Subtitle C regulations for CCRs. This 

accelerated approach violates the sequential nature of the Bevill process established by Congress, 

which provided for a regulatory determination to be followed at a later time by subsequent 

issuance of regulations.

To the extent EPA is authorized to reverse its 1993 and 2000 Regulatory Determinations, it 

cannot do so without complying with the statutorily mandated Bevill process. EPA's failure to do 

so prevents it from proceeding with the Subtitle C option.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-09346-2

Organization1:American Public Power Association (APPA)

Commenter1: Theresa Pugh

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
284

Comment Excerpt Text:

EPA's proposal to regulate CCRs under Subtitle C of RCRA is subjective and in direct 

contravention of the Bevill Amendment. In 1980, Congress amended,the Resource Conservation 

and Recovery Act (RCRA) with the passage of the Bevill Amendment to ensure that EPA would 

not inappropriately subject CCRs to hazardous waste regulation under Subtitle C of RCRA. 

Congress reasonably anticipated that such regulation would discourage the development of coal 

as one of the nation's primary sources of energy. The amendment, sponsored by Representative 

Tom Bevill of Alabama, was intended to avoid the excessive costs associated with Subtitle C 

regulation of CCRs and to promote beneficial coal utilization. Representative Bevill explained 

that the amendment was intended to "encourage development of coal as a primary domestic 

source of energy [and] avoid unnecessary inflationary impact." 126 Cong. Rec. 3361 (1980). 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09633-2

Organization1:Waterkeeper Alliance

Commenter1:Scott Edwards

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I. THE LANGUAGE AND LEGISLATIVE HISTORY OF RCRA COMPELS REGULATION 

OF COAL ASH UNDER SUBTITLE C 

A. Overarching Purpose and Goals of RCRA 

In response to the billions of tons of waste generated and disposed of in the U.S. each year, as 

well as the irresponsibility of industry in managing that waste, Congress passed the Resource 

Conservation and Recovery Act in 1976. The main thrust of this critical piece of legislation is to 

protect human health and the environment from the substantial dangers posed by hazardous 

waste by regulating how such waste is to be properly managed and stored. This is obvious from 

the plain language of the statute. Section 6902(a) states outright that a main objective of RCRA 

is “...to promote the protection of health and the environment...[.]” [Footnote 1: RCRA § 

6902(a); See also Meghrig v. KFC W., Inc., 516 U.S. 479, 483, 116 S. Ct. 1251, 1254, 134 L. 

Ed. 2d 121 (1996) (“RCRA's primary purpose, rather, is to reduce the generation of hazardous 

waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless 

generated, ‘so as to minimize the present and future threat to human health and the 

environment.’) (quoting 42 U.S.C. § 6902(b))] The statute proposed to do this by, among other 

things, forbidding future open dumping on land, requiring that existing open dumps be retrofitted 

so that they no longer pose a threat to human health or the environment, and by regulating 

hazardous wastes from cradle to grave in a manner which “...protects human health and the 

environment.” [Footnote 2: RCRA § 6902(a)(3) and (4)] In fact, Congress specifically stated that 

its intent in passing RCRA was to send “...a clear and unambiguous message to the regulated 

community and the Environmental Protection Agency: reliance on land disposal of hazardous 
285

waste has resulted in an unacceptable risk to human health and the environment.” [Footnote 3: 

H.R. Conf. Rep. 98-1133 (p. 3)] Congress went on to note that, therefore, “[l]and disposal should 

be used only as a last resort and only under conditions which are fully protective of human health 

and the environment.” [Footnote 4: H.R. Conf. Rep. 98-1133 (p. 3)] 

Congress’ disdain for land disposal of hazardous waste is reflected throughout the statutory 

language of RCRA. In particular, Congress found that “...open dumping is particularly harmful 

to health, contaminates drinking water from underground and surface supplies, and pollutes the 

air and the land...[.]” [Footnote 5: RCRA § 6901(b)(4)] Furthermore, the statute notes that, “...the 

placement of inadequate controls on hazardous waste management will result in substantial risks 

to human health and the environment...[.]” (emphasis added) To remedy these and other 

concerns, RCRA mandates that EPA set such standards for the proper management of hazardous 

waste “...as may be necessary to protect human health and the environment.” [Footnote 6: RCRA 

§§ 6922(a), 6923(a), 6924(a)] Nowhere does the statute mention that EPA, in promulgating the 

rules setting out these standards, need consider the costs and benefits that would attach from their 

implementation. 

In addition, Congress pointedly mentions twice within RCRA the desirability of disposing of 

hazardous waste properly in the first place, rather than relying on corrective action later on, after 

significant damage has already been done. [Footnote 7: RCRA §§ 6901(b)(6) and 6902(a)(5]) 

This language gives effect to the precautionary nature of RCRA--namely, that it is cheaper, 

easier, and overall a more preferable policy to provide for safe management of hazardous 

materials at the outset than it is to clean up the mess after an environmental catastrophe.

B. The Bevill Amendment 

Unfortunately, with more than 400 landfills, 629 ponds, and 750 inactive dumps currently 

containing coal ash, not to mention hundreds of both active and abandoned mines, [Footnote 8: 

Coal Ash: The toxic threat to our health and environment, Report from Physicians for Social 

Responsibility and Earthjustice, by Barbara Gottlieb with Steven G. Gilbert and Lisa Gollin 

Evans, September 2010, p. vis] Congress’ desire to curtail “open dumping” has gone long 

unfulfilled when it comes to this particular hazardous waste. With the 1980 Bevill Amendment, 

and as a favor to the Alabama coal industry, Representative Tom Bevill declared that "it would 

be unreasonable for EPA to impose costly and burdensome regulatory requirements without 

knowing if a problem really exists, and if it does, the true nature of that problem." 

While the Bevill Amendment to RCRA initially acted to shield coal combustion residuals from 

regulation, there is nothing in the statute or the legislative history of RCRA that requires, or 

justifies, doing so now. In introducing his Amendment, Rep. Bevill described the importance of 

“meaningful regulation” in dealing with hazardous substances that threaten communities and the 

surrounding environment, emphasizing that the Amendment would not act as a limitation on 

such regulation. [Footnote 9: Congressional Record, 126 Cong. Rec. 3361 (February 20, 1980) 

(check p. #)] The court in EDF v. EPA interpreted this and other similar language as 

confirmation of Congress’ intention that, in the case of hazardous Bevill wastes, the need for 

regulation should be evaluated according to the “actual risk” posed by the waste at issue. 

[Footnote 10: Envtl. Def. Fund v. U.S.E.P.A., 852 F.2d 1309, 1314-15 (D.C. Cir. 1988)] The 
286

court explained that with the Bevill Amendment, Congress was in effect directing EPA to engage 

in a context-specific analysis. [Footnote 11: Envtl. Def. Fund v. U.S.E.P.A., 852 F.2d 1309, 1314 

(D.C. Cir. 1988)] In other words, a finding of hazardousness for a Bevill waste (of which CCRs 

are one) necessarily turns on whether that particular waste poses a danger to human health or the 

environment in a particular situation. 

The dangers to human health and the environment resulting from exposure to coal combustion 

residuals are legion and well-documented, as discussed more fully below. Not only risks, but 

also actual damages, have been proven in numerous cases, representing a variety of situations. 

[Footnote 12: See EPA’s Preamble to the Rule and also Environmental Integrity Project Study] 

While Congress may not have been certain at the time of the hazardousness of coal ash, there is 

absolutely no question today, not only that such hazards exist, but also that they cannot be 

ignored. To do so means turning a blind eye to overwhelming scientific and anecdotal evidence 

of the hazardousness of coal ash. Congress clearly did not intend such a result. EPA’s own 

scientific findings, not to mention many other studies, show that coal ash poses a real and actual 

risk to human health and the environment, one that threatens our communities and natural 

resources. 

Clearly, thirty years later, with the undeniable impacts of coal ash on our water sources and 

communities, the “true nature of the problem” could not now be more self-evident; the time to 

responsibly regulate coal ash has arrived.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-1

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

EPA cannot promulgate Subtitle C regulations for coal combustion residuals Requirements of the 

Bevill amendment

The Bevill amendment to RCRA was an outgrowth of Congress’ concern that EPA might 

discourage the development of coal as one of the nation’s primary sources of energy if it 

prematurely and inappropriately subjected CCRs to regulation under Subtitle C of RCRA. The

enacted Bevill amendment ultimately incorporated congressional policy directives into RCRA by 

first suspending EPA’s authority to regulate CCRs under Subtitle C of RCRA until EPA 

completed a study to determine whether such regulation was warranted. To ensure that all 

relevant information was available to the agency and to avoid duplication of effort, Congress 

specifically directed EPA to “review studies and other actions of other Federal and State 
287

agencies ... and invite participation by other concerned parties, including industry and other 

Federal and State agencies.” Within six months following completion of the study and a report to 

Congress on the agency’s findings, EPA was required to make a final regulatory determination 

whether to subject to Subtitle C regulation the CCRs addressed in the study and report to 

Congress, or determine that Subtitle C regulation of these wastes is not warranted. The Bevill 

amendment required the Agency to base this final regulatory determination “on information 

developed or accumulated pursuant to such study, public hearings, and comment...”

It is important to appreciate that Congress was particularly concerned that EPA not make this 

decision in a vacuum. To that end, Congress emphasized that the Agency was to seek the 

assistance and cooperation of those with expertise in the field including “other agencies of 

Government that are aware of the role coal plays in our national energy policy, or of actual 

disposal and utilization practices.” These included the Departments of Agriculture, Commerce, 

Energy and Interior, as well as the Federal Highway Administration. The input of these federal 

agencies to assist EPA in reaching a final regulatory determination was a critical component of 

the Bevill amendment; it was important to Congress that the final determination reflects “a 

cooperative, informed effort” that met the nation’s energy goals.

Also of critical importance to Congress was the Bevill amendment’s decision-making process; 

these provisions reflect Congress’ intent that EPA reach all final decisions in a transparent 

manner that provides the public and Congress with an opportunity to determine whether any 

decision to regulate CCRs under RCRA Subtitle C was appropriate. In short, EPA could only 

reach the decision to regulate CCRs under Subtitle C after following a statutorily-prescribed 

series of steps. The Bevill amendment reflects Congress’ express intent that any regulation of 

CCRs under RCRA not unduly impede the nation’s use of coal. It addressed this concern by 

cautioning EPA not to impose unnecessary and costly regulations on those industries that use 

coal to produce electricity for the nation. It also reflects Congress’ concern that regulating CCRs 

under RCRA Subtitle C would discourage, and perhaps end, CCR beneficial use. EPA completed 

its statutory obligation under the Bevill amendment in May 2000, when the agency issued its 

final Regulatory Determination concluding that CCRs do not warrant regulation under Subtitle C 

of RCRA. EPA published its first Report to Congress on March 8, 1988, concluding that large

volume coal combustion waste streams generally do not exhibit hazardous characteristics under 

current RCRA regulations, and therefore “EPA does not intend to regulate under [RCRA] 

Subtitle C fly ash, bottom ash, boiler slag, and flue gas desulfurization wastes.” The 1988 Report 

to Congress also encouraged the utilization of coal combustion wastes to the extent such 

utilization can be done in an environmentally safe manner

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-4

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive
288

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

EPA has failed to adhere to the Bevill amendment’s prescribed process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory 

Determination for CCRs, the agency would have to adhere to the statutorilyprescribed 

procedures that Congress demanded EPA follow in determining whether and how to regulate 

CCRs. EPA has strayed beyond the plain language of the statute by proposing to reverse its final 

Regulatory Determinations for CCRs without following the statutorily-required process it 

followed for issuing those determinations in the first instance. The agency’s proposed Subtitle C 

option does not comport with the process that Congress demanded EPA adhere to in determining 

whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct 

thorough studies demonstrating a clear need for regulation; provide Congress a report detailing 

its findings on those studies; conduct public hearings and solicit comments on that report to 

Congress; issue a final determination based on the report to Congress and provide an opportunity 

for public comment on that report regarding whether and how to regulate CCRs under RCRA.

Prior to making any final regulatory determination for CCRs, the statute directs EPA to fully 

inform Congress of the Agency’s initial recommendation. This is not a mere procedural 

formality. As Representative Bevill emphasized when introducing his amendment, it was 

especially critical that EPA not make the final regulatory determination in isolation, but that 

Congress and relevant federal agencies be involved in the decision-making process. The failure 

of EPA to prepare a report to Congress outlining fully and comprehensively the Agency’s 

recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds with the 

plain language of the statute. This failure deprives Congress of its statutorily-prescribed right to 

be fully informed of any such recommendation so that it can evaluate and respond, as 

appropriate, to the Agency’s proposed course of action before EPA makes a final regulatory 

determination and develops federal regulations

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-1

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
289

Comment Excerpt Text:

A. The Legislative History Of The Bevill Amendment

The Bevill Amendment to RCRA, enacted in 1980, was an outgrowth of Congress‘s concern that 

EPA might discourage the development of coal as one of the nation‘s primary sources of energy 

if it prematurely and inappropriately subjected CCRs to regulation under Subtitle C of RCRA. 

Representative Bevill of Alabama, sponsor of the Amendment in the House, feared that the cost 

of hazardous waste regulation of CCRs would have an immediate inflationary effect on the 

economy and a disastrous impact on coal utilization.

To avoid this result, Representative Bevill explained in unambiguous terms that the purpose of 

the Amendment was to:

encourage development of coal as a primary domestic source of energy, avoid unnecessary 

inflationary impact, and focus the efforts of the Environmental Protection Agency in 

implementing the Resource Conservation and Recovery Act toward activities truly necessary to 

protect public health and the environment, specifically, it would require EPA to defer imposition 

of regulatory requirements on the disposal of the waste by-product of fossil fuel combustion, of 

discarded mining materials and of cement kiln dust until after EPA has completed studies to 

determine whether, if at all, these materials present any hazard to human health or the 

environment. These studies would include evaluation of the economic and environmental aspects 

of existing and alternative disposal and reuse options. EPA would also be required to focus on 

the impact of these alternatives on the use of our coal and other natural resources. 126 Cong. 

Rec. 3361 (1980). [Footnote 2: On the same day that the Senate passed the Huddleston 

Amendment (the Senate predecessor to the Bevill Amendment), it also adopted a resolution 

expressing concern about the national security implications of dependence on foreign oil supplies 

and calling on the President to propose a plan for displacing specific percentages of foreign oil 

with domestic coal. S. Res. 175, 96th Cong., 1st Sess. (1979), 125 Cong. Rec. 13241 (1979).] 

Representative Bevill estimated that compliance with the proposed Subtitle C program would 

cost the utility industry $1 billion in the first three years, and that these “costs are likely to be 

passed along to consumers, with an immediate inflationary impact.” 126 Cong. Rec. at 3361; see 

also id. at 3363 (remarks of Rep. Findley); 125 Cong. Rec. at 13245 (remarks of Sen. 

Huddleston); id. at 13246 (remarks of Sen. Ford). As the D.C. Circuit has made clear, “the 

emphasis on economic factors . . . is consistent with . . . . Congress‘s obvious goal in enacting the 

Bevill Amendment – to relieve [the Bevill industries] of the onerous economic burden of 

stringent Subtitle C controls if at all possible.” Envtl. Def. Fund v. EPA, 852 F.2d 1309, 1315 

(D.C. Cir. 1988) (emphasis added) (“EDF v EPA”). [Footnote 3: While the EDF v. EPA decision 

involved a challenge to EPA‘s regulatory determination not to regulate Bevill mining wastes 

under RCRA Subtitle C, the Court‘s description of the purpose of the Bevill Amendment to have 

EPA avoid Subtitle C regulation if at all possible for Bevill wastes obviously applies to all the 

Bevill wastes, including CCRs.] As discussed below, the projected compliance costs associated 

with EPA‘s proposed Subtitle C option have skyrocketed to a range of at least $5.32 to $7.62 

billion per year. See EPRI, 2010, Cost Analysis of Proposed National Regulation of Coal 

Combustion Residuals from the Electric Generating Industry, EPRI, Palo Alto, CA: 2010. 

1022296 at 4-1 (“EPRI Cost Report”).
290

Additionally, other supporters of the Amendment have been acutely sensitive to the nation‘s 

dependence on foreign energy sources; they intended the Bevill Amendment to reflect 

congressional policy that any regulatory program for CCRs under RCRA not create disincentives 

for the use of coal, including regulations that would cause utilities to switch fuels from coal to 

other sources. See, e.g., 126 Cong. Rec. at 3363 (remarks of Rep. Rahall) (“[a]t a time when we 

are seeking to encourage electric utilities and others to switch from the burning of oil to coal, it 

would be highly inappropriate to place further unnecessary regulatory roadblocks in the way of 

increased coal usage”); 125 Cong. Rec. at 13246 (remarks of Sen. Byrd) (under this amendment, 

“those who produce coal will be able to do so without the fear that utility customers will be 

forced to use some other fuel because of environmental regulations”).

The Amendment also reflected the congressional intent to promote the beneficial use of CCRs 

since “a national commitment to encourage reuse of such materials as fly ash was a key element 

of RCRA,” which Representative Bevill observed “seem[ed] to have not received adequate 

attention at EPA.” 126 Cong. Rec. at 3362.[Footnote 4: Representative Bevill emphasized that 

the beneficial use of CCRs “saves energy,” explaining, for example, that the use of fly ash in 

cement results in a 15 percent savings in the amount of energy needed to that product, and is cost 

effective, saving tax payers 10-15 percent in federally sponsored concrete construction projects. 

126 Cong. Rec. at 3362.] Representative Findley of Illinois, another supporter of the 

Amendment, was more direct in his caution to EPA about the adverse impact on CCR beneficial 

use resulting from the regulation of CCRs under RCRA Subtitle C. He warned that if the Agency 

were to regulate CCRs under RCRA‘s hazardous waste program, the “flourishing industry which 

recycles these byproducts would be gravely disrupted and possibly closed down.” Id. At 3363.

Representative Rahall of West Virginia was equally direct that EPA avoid any unnecessary 

regulation of CCRs under RCRA Subtitle C for fear that such a program would devastate the 

CCR beneficial use market. He urged that “avoidance of unnecessary regulation of coal 

byproducts is particularly important because of the impact such regulation will have on reuse.” 

Id. He stressed that it was critical to avoid such unnecessary regulation in light of the fact that 

CCRs used in the beneficial use market compete with a variety of other natural aggregates and 

materials:

It is obvious that the imposition of any expensive regulatory requirements on these developing 

industries will have a disastrous impact on them. It is thus vital that EPA fully evaluate a need 

for regulation, and the alternatives to various regulatory schemes, before blindly and only 

because coal is involved, imposing regulations on these coal byproduct materials.

Id. at 3363-64. Representative Staggers, Chairman of the Interstate and Foreign Commerce 

Committee, which reported the RCRA reauthorization bill, echoed the concerns about the 

adverse impact on CCR beneficial use if CCRs were regulated under Subtitle C:

[Subtitle C regulation of fossil fuel combustion wastes] would run counter to one of the principal 

designs of the Resource Conversation and Recovery Act -- conservation of valuable material ... 

Coal combustion products, including particularly fly ash, provide significant beneficial reuses 

and substitution for other more costly materials ... The act [RCRA] is intended to encourage, not 

discourage, such beneficial reuses.
291

126 Cong. Rec. at 3364-65. See also id. at 3362 (remarks of Rep. Bevill), 3362-63 (remarks of 

Rep. Horton), 3363 (remarks of Rep. Findley & Rep. Rahall); 125 Cong. Rec. at 13245 (remarks 

of Sen. Huddleston). Senator Huddelston summed up the purpose of the Bevill Amendment by 

making clear to EPA that such regulation was to be an option of last resort:

In my amendment [the Senate equivalent to the Bevill amendment] the Administrator should be 

extremely cautious in imposing any additional regulations on these materials, particularly in 

view of the resulting discouragement of coal use and the recovery and reuse of valuable fossil 

fuel combustion byproducts.

125 Cong. Rec. at 13245. [Footnote 5: Both amendments were virtually identical in their 

treatment of utility combustion wastes. Compare 125 Cong. Rec. 13241, 13244 (1979) with 126 

Cong. Rec. 3359-61 (1980). The significant difference in the two versions was that the Senate 

amendment also suspended the regulation of certain oil, natural gas and geothermal energy 

wastes, while the House amendment suspended the regulation of mining and cement kiln dust 

wastes. The Conference Committee reconciled the two versions by adding the Senate‘s oil, 

natural gas and geothermal waste suspension to the House version on utility, mining and cement 

kiln dust wastes. See H.R. Conf. Rep. No. 96-1444 at 31-32 (1980), reprinted in 1980 

U.S.C.C.A.N. 5030-31. ]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-16

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.2

Comment Excerpt Text:

B. The Subtitle C Option Is Inconsistent With The Bevill Amendment And Arbitrary And 

Capricious Because It Would Result In Unnecessary And Excessively Burdensome Regulation 

Of CCRs

A fundamental purpose of the Bevill Amendment is to ensure that any final regulatory option 

that EPA selects for CCR uses cost-effective controls, to avoid imposing undue regulatory costs 

on the utility industry. Representative Bevill could not have been more direct on this point when 

introducing his Amendment, emphasizing that any final regulation of CCRs not result in 

“unnecessary inflationary impact[s]” on the use of coal from overly stringent CCR regulations. 

126 Cong. Rec. 3361; see also id. At 3363 (remarks of Rep. Rahall) (“[a]t a time when we are 

seeking to encourage electric utilities and others to switch from the burning of oil to coal, it 

would be highly inappropriate to place further unnecessary regulatory roadblocks in the way of 
292

increased coal usage”); 125 Cong. Rec. at 13246 (remarks of Sen. Byrd) (under this amendment, 

“those who produce coal will be able to do so without the fear that utility customers will be 

forced to use some other fuel because of environmental regulations”). 

The D.C. Circuit expressly acknowledged the Bevill Amendment‘s directive to EPA that it 

consider costs in making a final regulatory determination, emphasizing that:

Congress intended attention to cost and the economic impact of regulatory controls in making a 

regulatory determination. The emphasis on economic factors is consistent with Congress‘ 

obvious goal in enacting the Bevill Amendment – to relieve [the Bevill industries] of the onerous 

economic burden of stringent Subtitle C controls if at all possible.

EDF v. EPA, 852 F.2d at 1314 (emphasis added). Indeed, RCRA Section 8002(n)(6) specifically 

lists costs as an independent study factor in determining whether CCRs warrant regulation under 

RCRA Subtitle C.

EPA‘s Subtitle C option is flatly inconsistent with Congress‘s “obvious goal in enacting the 

Bevill Amendment” to avoid Subtitle C regulation and the associated regulatory costs of this 

option “if at all possible.” In fact, EPA readily acknowledges that one of the express purposes of 

the Subtitle C option is to increase the costs of CCRs under the Agency‘s misguided impression 

that this will increase CCR beneficial use. See 75 Fed. Reg. at 35185. In fact, as discussed 

below, EPA‘s proposed Subtitle C option would regulate CCR disposal facilities more 

stringently than any other hazardous waste by taking the unprecedented step of extending 

Subtitle C controls to previously closed and inactive CCR surface impoundments. Id. at 35177. 

Thus, not only does the Subtitle C option reflect the most extreme and costly regulatory choice 

available to EPA under RCRA, it would apply the hazardous waste disposal rules to CCRs in a 

manner more stringent than that previously applied to any other hazardous wastes.

This draconian approach to regulating CCRs under RCRA is diametrically opposed to the very 

purpose and objective of the Bevill Amendment and cannot be pursued. While Congress directed 

EPA to select the most cost-effective regulatory option for CCRs, the proposed Subtitle C option 

appears to be specifically designed to have just the opposite result; namely, to make the disposal 

of CCRs as costly and as burdensome as possible.

The EPRI Cost Report referenced above examined the full range of Subtitle C compliance costs 

for utilities, including the costs of retrofitting upstream CCR handling units (e.g., hoppers, tanks 

and conveyor systems) to meet EPA‘s hazardous waste design and operating requirements. See 

EPRI Cost Report at 2-11 – 2-12. EPA acknowledges that this latter cost element – the need to 

upgrade and/or retrofit upstream CCR handling units – is a necessary cost component of the 

Subtitle C option, but the Agency‘s Subtitle C cost estimate does not include this important cost 

component because EPA lacked information “on baseline CCR storage practices.” 75 Fed. Reg. 

at 35212. The EPRI Cost Report also includes another important cost element of Subtitle C 

compliance not evaluated by EPA; specifically, the costs to power plants of having to construct 

new wastewater treatment facilities to replace the wastewater treatment function served by CCR 

surface impoundments that would have to close under the Subtitle C option. EPRI Cost Report at 

2-10 – 2-11. In its cost analysis, EPA fails to recognize that CCR surface impoundments often 
293

serve a dual function at power plants: both to manage CCRs and to serve as a component of the 

plant‘s wastewater treatment system. Mandatory closure of the CCR surface impoundments 

under the Subtitle C option will require power plants to invest substantial resources in designing 

and constructing new wastewater treatment facilities.

Finally, the EPRI Cost Report also includes the increased disposal costs that will be incurred by 

electric utilities under the Subtitle C option due to the need to send CCRs to off-site commercial 

hazardous waste disposal facilities. Id. at 2-14 – 2-16. As discussed further below, EPA 

mistakenly assumes that, under the Subtitle C option, electric utility CCR disposal options will 

remain unchanged. In fact, however, for a multitude of reasons, many utilities will not be able to 

permit new Subtitle C landfills onsite, will be legally prohibited from using nearby existing 

commercial RCRA Subtitle D landfills, and will be compelled to transport CCRs currently 

managed on-site or locally to out-of-state commercial hazardous waste disposal facilities.

All told, the EPRI Cost Report estimates that the compliance costs for electric utilities will be, at 

a minimum, in the range of $55.3 to $74.5 billion over a 20-year horizon (at a seven percent 

discount rate). Id. at 4-1. If a three percent discount rate is used, which is often appropriate 

where, as here, the regulatory costs could be passed onto consumers in the form of higher 

electricity rates, the Subtitle C compliance costs jump to a range of $78.9 to $110.0 billion. Id. at 

4-4 – 4-5. [Footnote 18: Further, these estimates do not include other costs that would be 

incurred under the Subtitle C option, including (1) landfill construction costs and associated land 

acquisition costs; (2) costs of replacement power during outages or to compensate for early 

retirements; (3) undertaking facility-wide corrective action as a condition of obtaining a RCRA 

Subtitle C permit; (4) state hazardous waste generator fees; and (5) the cost of capital. Id. at 2-8 –

2-9. ] These numbers are in contrast to the $20.1 billion in compliance costs estimated by EPA in 

its Regulatory Impact Analysis (“RIA”).

Further, even the staggeringly high compliance numbers included in the EPRI Cost Report are 

predicated on a number of conservative assumptions regarding the ability of power plants to 

meet the Subtitle C requirements in a full and timely fashion. Id. at 4-5 – 4-6. In fact, the real 

world compliance costs may be far higher. These costs would be sufficiently high to render some 

coal-fired power plants, particularly smaller generating units, not economically viable, forcing 

their early closure. See EOP Group, Inc, “Cost Estimates for the Mandatory Closure of Surface 

Impoundments Used for the Management of Coal Combustion Byproducts at Coal-Fired Electric 

Utilities,” (Nov. 2010) (“EOP Report”) at 13 (attached as Appendix 19). Thus, instead of 

promoting the use of coal by selecting the most cost-effective regulatory option for CCRs, EPA‘s 

Subtitle C option will actually discourage the use of coal by rendering the use of coal at some 

facilities uneconomical. This result is in direct contravention of the express congressional 

purpose behind the Bevill Amendment.

Such an approach is unsupportable given the fact that EPA itself readily acknowledges that the 

substantive controls for CCR landfills and surface impoundments are similar. See 75 Fed. Reg. at 

35213. Given that the substantive disposal controls under the Subtitle D option would be just as 

effective in protecting human health and the environment, as those provided for under the 

Subtitle C option at far less cost and without the severe collateral impacts on beneficial use, the 

price of power and the use of coal, the Subtitle C option is inconsistent with the stated purpose of 
294

the Bevill Amendment.

The hazardous constituents present in CCR leachate also support EPA‘s earlier Regulatory 

Determinations that these materials can appropriately be managed under a Subtitle D program. 

As AECOM Environment summarizes in its report, EPRI conducted a comparison between the 

hazardous constituents present in CCR leachate and leachate from municipal solid waste landfills 

(“MSWLFs”), which are, of course, subject to Subtitle D regulation. See AECOM Environment, 

Report on CCR Proposal (Nov. 2010) (“AECOM Report”) at 4 (attached as Appendix 20). This 

analysis determined that 99 hazardous constituents were detected in the MSWLF leachate of 

which 62 were detected at the 90th percentile, while only 14 hazardous constituents were 

detected in the CCR leachate all of which were detected at the 90th percentile. Id. Given the 

significantly broader range of hazardous constituents in MSWLF leachate, it appears wholly 

unjustified to subject CCR to more restrictive Subtitle C regulation while MSWLFs are subject 

to Subtitle D controls.

Further, EPA‘s selection of the Subtitle C option would be arbitrary and capricious because EPA 

has not explained why its earlier conclusions that the Subtitle C option would result in excessive 

and inappropriate regulatory controls for CCRs are no longer true. In its 1993 final Regulatory 

Determination concluding that the four large volume CCRs – fly ash, bottom ash, boiler slag, and 

flue gas desulfurization waste – do not warrant hazardous waste regulation, EPA emphasized that 

the inflexible Subtitle C hazardous waste framework was inappropriate for CCRs, explaining 

“that it is unlikely that Subtitle C would effectively address the problems associated with the four 

large volume fossil-fuel combustion wastes [CCRs] without imposing unnecessary controls.” 58 

Fed. Reg. at 42477 (emphasis added).

This was an important conclusion, because as EPA explained in outlining the factors that it 

would evaluate in making a final regulatory determination, “the special status of the [CCR] 

waste requires that the Agency consider the impacts to the industry that regulation under Subtitle 

C would create in making a decision to regulate the waste as hazardous.” 58 Fed. Reg. at 

42471(emphasis added). EPA found that the rigid nature of the Subtitle C regulatory system 

would result in excess costs and unnecessary regulation as applied to CCR management units. 

After acknowledging that CCRs rarely exhibit a hazardous waste characteristic and thus would 

not be subject to hazardous waste controls unless they were listed as a hazardous waste, EPA 

emphasized that the listing approach would be inappropriate and excessive:

Furthermore, it was noted that even if these wastes were listed as hazardous, and therefore, 

regulated under Subtitle C, such an approach would be inappropriate for these wastes. A Subtitle 

C system would require coal combustion waste units to obtain a RCRA Subtitle C permit (which 

would unnecessarily duplicate existing State requirements) and would establish a series of waste 

unit design and operating requirements for these wastes, which would generally be in excess of 

requirements to protect human health and the environment.

Id. at 42477 (emphasis added).

EPA reiterated this conclusion in its 1999 Report to Congress, explaining “that [RCRA] Subtitle 

C is inappropriate to address any problems associated with disposal of these wastes and that the 
295

continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” 1999 Report to Congress Vol. at 1 3-5. EPA emphasized that 

regulating CCRs under RCRA‘s hazardous waste program “would unnecessarily duplicate 

existing State requirements” and “would establish a series of waste unit design and operating 

requirements for these wastes, which would generally be in excess of requirements to protect 

human health and the environment.” 58 Fed. Reg. at 42471 (emphasis added).

Having previously concluded that the Subtitle C approach would be inappropriate because, 

among other reasons, it would result in the over-regulation of CCRs in contravention of the 

Bevill Amendment, EPA provides no explanation whatsoever in the instant proposal as to what, 

if anything, has changed to suggest that the imposition of these very same Subtitle C controls 

will no longer result in inappropriate and unnecessary costs on the utility industry. As EPA itself 

noted earlier, “the special status of the [CCR] waste requires that the Agency consider the 

impacts to the industry that regulation under Subtitle C would create in making a decision to 

regulate the waste as hazardous.” Id. at 42471. There is no reasoned explanation for EPA‘s 

about-face on this issue.

The excessive costs and unduly burdensome regulation of CCRs under the instant proposed 

Subtitle C option are at least as great today as they were ten years ago when EPA rejected 

application of the Subtitle C hazardous waste rules for CCRs. As EPA has completely failed to 

explain why regulation of CCRs under Subtitle C is now appropriate, having expressly found 

earlier that such regulation would be both “inappropriate” and in “excess of requirements” for 

CCRs, any final Subtitle C regulation would be arbitrary and capricious. See S. Co. Servs. v. 

FCC, 313 F.3d 574 (D.C. Cir. 2002) (noting that, in evaluating whether an agency‘s changed 

position is arbitrary and capricious, “the issue is whether the agency furnished a reasoned 

explanation for its changed position.”).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-2

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. The Text Of The Bevill Amendment
296

The enacted Amendment ultimately incorporated these congressional policy directives into 

RCRA by first suspending EPA‘s authority to regulate CCRs under Subtitle C of RCRA until 

EPA completed a study to determine whether such regulation was warranted. Specifically, the 

Bevill Amendment provides that fly ash waste, bottom ash waste, slag waste, and flue gas 

emission control waste generated primarily from the combustion of coal or other fossil fuels shall 

be subject to regulation only under other applicable provisions of federal or state law in lieu of 

RCRA Subtitle C until at least six months after the date of submission to Congress of a 

comprehensive study of those wastes. RCRA § 3001(b)(3)(A), 42 U.S.C. § 6921(b)(3)(A). 

[Footnote 6: This section reads in pertinent part: Notwithstanding the provisions of paragraph (1) 

of this subsection, each waste listed below shall, except as provided in subparagraph (B) of this 

paragraph, be subject only to regulation under other applicable provisions of Federal or State law 

in lieu of this subtitle until at least six months after the date of submission of the applicable study 

required to be conducted under subsection .... (n) .... of section 6982 of this title and after 

promulgation of regulations in accordance with subparagraph (C) of this paragraph: (i) Fly ash 

waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily 

from the combustion of coal or other fossil fuels.]

This comprehensive study was to assess the environmental risks, if any, posed by CCRs, taking 

into account the following eight factors:

(1) the source and volumes of such material generated per year;

(2) present disposal and utilization practices;

(3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

(4) documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved;

(5) alternatives to current disposal methods;

(6) the costs of such alternatives;

(7) the impact of those alternatives on the use of coal and other natural resources; and

(8) the current and potential utilization of such materials. 

RCRA § 8002(n), 42 U.S.C. § 6982(n).

To ensure that all relevant information was available to the Agency and to avoid duplication of 

effort, Congress specifically directed EPA to “review studies and other actions of other Federal 

and State agencies .... and invite participation by other concerned parties, including industry and 

other Federal and State agencies .... .” Id.

Within six months following completion of the study and a report to Congress on the Agency‘s 
297

findings, EPA was required to make a final regulatory determination whether to (1) subject to 

Subtitle C regulation the CCRs addressed in the study and report to Congress, or (2) determine 

that Subtitle C regulation of these wastes is not warranted. The Bevill Amendment required the 

Agency to base this final regulatory determination “on information developed or accumulated 

pursuant to such study, public hearings, and comment. . . .” RCRA § 3001(b)(3)(C), 42 U.S.C. § 

6921(b)(3)(C). In short, EPA could only reach the decision to regulate CCRs under Subtitle C 

after following a statutorily-prescribed series of steps that involved congressional oversight 

marked by EPA‘s submission of reports to Congress that would inform the relevant 

congressional committees of jurisdiction of the Agency‘s preliminary recommendations. The 

final regulatory determination was to be issued according to a statutorily-imposed deadline and 

based on public hearings and comments responding to the report to Congress. See EDF v. EPA, 

852 F.2d at 1314 (“The statute clearly states that the agency is to base its regulatory 

determination on the information gathered for the § 8002(p) study.”).

Also, it is important to appreciate that Congress was particularly concerned that EPA not make 

this decision in a vacuum. To that end, Congress emphasized that the Agency was to seek the 

assistance and cooperation of those with expertise in the field including “other agencies of 

Government that are aware of the role coal plays in our national energy policy, or of actual 

disposal and utilization practices.” 126 Cong. Rec. at 3362. These included the Department of 

Energy, the Department of the Interior, the Federal Highway Administration, Department of 

Commerce, and the Department of Agriculture. Id. The input of these other federal agencies to 

assist EPA in reaching a final regulatory determination was a critical component of the Bevill 

Amendment; it was important to Congress that the final determination reflect “a cooperative, 

informed effort” that met the nation‘s energy goals. Id.

Also of critical importance to Congress was the Bevill Amendment‘s decision making process; 

these provisions reflect congressional intent that EPA reach all final decisions in a transparent 

manner that provides the public and Congress with an opportunity to determine whether any 

decision to regulate CCRs under RCRA Subtitle C was appropriate. Representative Bevill 

emphasized this point by stressing that, after EPA issued its statutorily-required report to 

Congress containing its recommendation whether CCRs warranted regulation under RCRA 

Subtitle C, the Agency would “be required to obtain public views on [the report] and to make 

known whether as a result of this process, EPA believes any regulation of these materials is 

necessary.” Id. Congress viewed this requirement as “especially important in view of our 

national commitment to develop a coherent and consistent policy toward the use of our coal and 

other energy resources.” Id. The public notice and comment requirement was also intended to 

“allow interested parties to evaluate the basis of the Agency‘s decision, and to address the 

question of what degree of regulation, if any, is appropriate” for CCRs. Id.

Taking into consideration these congressional concerns, EPA completed its statutory obligation 

under the Bevill Amendment in May 2000, when it issued its final Regulatory Determination 

concluding that CCRs do not warrant regulation under Subtitle C of RCRA.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 
298

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Section 2.1.6 - Other comments on legal issues

Total Number of Submissions: 59

Total Number of Comments: 91

Comment Number: EPA-HQ-RCRA-2009-0640-04005-5

Organization1:

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

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Section 7003 of RCRA provides the EPA with the authority to address conditions that may 

present imminent and substantial endangerment to human health or the environment when the 

handling, storage, treatment, transportation, or disposal of any solid or hazardous waste may 

present such an endangerment. We call upon the EPA to initiate such measures immediately so 

that further exposure of innocent people and the environment is halted.

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

referred to Unit II of this supporting preamble for a discussion of when the authorities under 

Section 7003 of RCRA are utilized. These authorities are separate from this rule however they 

can be implemented when situations warrant their use.

Comment Number: EPA-HQ-RCRA-2009-0640-06041-1

Organization1:SKB Environmental, Inc (SKB)

Commenter1: Ryan O'Gara

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

SKB Environmental, Inc (SKB) would like to take this opportunity to offer comments regarding 

the United States Environmental Protection Agency's (USEPA's) proposed regulations for coal 

combustion byproducts (CCBs) under the Resource Conservation and Recovery Act(RCRA) 

(Docket ID No. EPA-HQ-RCRA-2009-0640) . SKB is opposed to the USEPA's current proposal 

that would regulate CCBs as a hazardous waste under RCRA Subtitle C. In addition, SKB is also 

opposed to particular provisions that would set a precedent where no exemptions would be 
299

provided for waste disposed prior to listing under RCRA Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. However this comment is 

no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule 

for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06041-7

Organization1:SKB Environmental, Inc (SKB)

Commenter1: Ryan O'Gara

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.4.1

Comment Excerpt Text:

Another issue SKB is concerned about relates to language found on page 35177 of the Federal 

Register public notice of the rule. Historically, facilities that have accepted in the past material 

that was not but has subsequently been reclassified to be regulated under RCRA Subtitle C have 

been exempted from the regulation. For example, when the USEPA created the waste codes 

K169, K170, K171 and K172 for petroleum refining wastes, the facilities that managed the waste 

prior to August 1998 were not required to meet the Subtitle C standards.

The proposed rules would set a dangerous precedent by not exempting facilities that accepted 

wastes that were not regulated under RCRA Subtitle C at the time of disposal .This would be a 

drastic departure from long-standing past practices and would have a devastating impact on 

disposal facilities such as ours if this precedent were to be applied to other waste regulations. We 

understand the intent of the policy is to phase out the operation of Treatment Surface 

Impoundments as a disposal option for CCBs, but the approach this proposal takes is 

unreasonable and sets a very dangerous precedent. Other policy approaches could be taken to 

achieve the USEPA's desired outcome without setting such a dangerous precedent that could 

potentially result in untold negative unintended consequences.

Response: The Agency acknowledges and appreciates the comment. However this comment is 

no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule 

for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06041-8

Organization1:SKB Environmental, Inc (SKB)

Commenter1: Ryan O'Gara

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.1

Comment Excerpt Text:
300

To summarize, SKB is opposed to the regulation of CCBs under RCRA Subtitle C, but could 

support regulation of these wastes under RCRA Subtitle D. SkB is also opposed to the aspects of 

the proposed rule that would not exempt facilities that accepted waste were not regulated under 

RCRA Subtitle C at the time of disposal . 

Response: The Agency acknowledges and appreciates the comment. However this comment is 

no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule 

for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06248-10

Organization1:Lignite Energy Council

Commenter1:John W. Dwyer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The problem with the present rulemaking is that Congress did not provide EPA with statutory 

authority to reconsider its prior determinations that CCRs are to be regulated under Subtitle D, 

not Subtitle C. Reconsideration of whether CCRs should be regulated under Subtitle C is 

therefore barred under two established provisions of administrative law—the first prong of the 

Chevron test, and the doctrine of administrative res judicata. 

Under the test established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 

(a/k/a the Chevron test),21 a court implements a two-prong test to review the validity of an 

administrative agency's “construction of the statute which it administers.”22 First, the court must 

look to whether Congress has expressed a clear intent with regard to the particular issue in 

dispute.23 If there is an unambiguously expressed congressional intent, both the court and the 

agency must comply.24 If Congress has either expressed no view or an ambiguous view on the 

particular issue in dispute, the court must address the second question of whether the agency 

provided a “permissible construction of the statute.”25 

In the case of the present rulemaking, EPA’s attempt to reconsider whether to regulate CCRs 

under Subtitle C violates the unambiguously expressed congressional intent of the Bevill 

Amendment. The intent of the Bevill Amendment required EPA to make a single determination 

and deliver that finding to Congress. The determination contained an analysis of the eight factors 

set forth in 42 U.S.C. § 6982(n) concerning whether “materials generated from the combustion 

of coal” should or should not be regulated as a hazardous waste. The Bevill Amendment did not 

provide for a reconsideration of the determination more than 30 years after the statute was 

enacted, and more than 20 years after EPA’s determination in 1988 that CCRs should not be 

regulated under Subtitle C. The present rulemaking, therefore, fails the first prong of the 

Chevron test in that it is counter to the clear intent of Congress expressed in the statute. The 

change, if it is to be made, must be made by Congress, not by EPA as the regulating agency. 

19 Id. 

20 1999 Report to Congress at ES1-2, and 65 Fed. Reg. 32214, 32218 (May 22, 2000). 

21 467 U.S. 837, 842-43 (1984). 

22 Id. At 842. 
301

23 Id. 

24 Id. at 842-43. 

25 Id. at 843

Response: The Agency acknowledges and appreciates the comment. However this comment is 

no longer relevant to this rulemaking as the Agency has decided to promulgate a subtitle D rule 

for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-11

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

In order for EPA to effectively regulate coal combustion residuals as a solid waste, an 

amendment to the Solid Waste Disposal Act may need to be obtained from Congress. Currently, 

EPA has oversight ability over state solid waste programs in regards to ensuring there are 

sanitary landfills being utilized in place of open dumps and in ensuring appropriate requirements 

are being met for landfills that accept household hazardous waste and small quantity generator 

hazardous waste. An amendment to 42 CFR Section 6949a which would include coal 

combustion residuals in addition to household hazardous waste and small quantity generator 

hazardous waste, would allow EPA to have such oversight authority. This amendment would 

enable EPA to set regulatory standards for states to comply with in their respective solid waste 

programs with regards to the disposal of coal combustion residuals in solid waste landfills.

In addition, once this statutory authority is obtained by EPA, the Commonwealth of Kentucky 

would propose the following additional requirements be added to the proposal under the solid 

waste scenario to ensure protection of human health and the environment:

-Some properly controlled unencapsulated uses for beneficial use;

-Allowing the state permitting programs to provide variances and alternate designs with prior 

review and public notification; and

-Sufficient time for state agencies to ramp up and implement the program

With these changes, the Commonwealth of Kentucky believes that coal combustion residuals can 

be effectively regulated to the extent necessary to protect human health and the environment.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06275-28

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum
302

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Although LBWL and MSU recognize the need for some regulation of CCRs managed in unlined 

and unregulated surface impoundments, LBWL and MSU believe that, because EPA lacks the 

proper tools under RCRA to establish appropriate federal CCR regulations, EPA should allow 

Congress to review RCRA and, if necessary, amend its provisions. Until Congress has completed 

its review, EPA should not promulgate any nationally-applicable CCR disposal regulations.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06275-45

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Moreover, LBWL and MSU believe EPA should defer all action on this matter until Congress 

amends RCRA to provide EPA with the proper tools to effectively regulate CCR disposal.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-12

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

More than 30 years have passed since the Bevill Amendment [Footnote 7: (See Bevill 

Amendment, 42 U.S.C. § 6982(n) (1980)] was enacted in 1980. Despite a clear Congressional 

mandate to provide regulation within two and half years, to date, there has still not been a 

determination about how to dispose of the Bevill wastes. Yet since 1980, EPA has studied coal 

combustion waste with mounting evidence that coal ash poses severe risks to human health and 
303

the environment.

A. RCRA’s Passage and the Development of the “Special Waste” Terminology for Coal 

Combustion Waste

In 1976, Congress passed the Resource Conservation and Recovery Act (RCRA) [Footnote 8: 

Pub. L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§ 6901 to 6992k)] 

to regulate treatment and disposal of hazardous wastes in order to protect human health and the 

environment. Subtitle C of RCRA regulated hazardous wastes and contained directives to EPA to 

identify and list hazardous wastes under this title.

After RCRA’s passage and pursuant to congressional directive, EPA published regulations in 

1978 entitled “Proposed Guidelines and Regulations and Proposal on Identification and Listing.” 

[Footnote 9: “Proposed Guidelines and Regulations and Proposal on Identification and Listing” 

for RCRA Subtitle C hazardous waste, 43 Fed. Reg. 58,946 (Dec. 18, 1978)] In these 

regulations, EPA proposed deferring “applicability of most of the treatment, storage, and 

disposal standards for selected high-volume, relatively low risk waste categories until 

information is gathered and assessed to determine how they can best be handled.” [Footnote 10: 

“Proposed Guidelines and Regulations and Proposal on Identification and Listing” for RCRA 

Subtitle C hazardous waste, 43 Fed. Reg. 58,946 (Dec. 18, 1978) at 58,948.] Thus, EPA stated 

that it would address so-called high volume, low risk wastes (mining waste, utility waste, gas and 

oil drilling muds, gypsum piles, and cement kiln dust)— which it termed “special wastes”—in 

later regulations, and it solicited information and comments that would assist the agency in 

developing substantive standards. [Footnote 11: “Proposed Guidelines and Regulations and 

Proposal on Identification and Listing” for RCRA Subtitle C hazardous waste, 43 Fed. Reg. 

58,946 (Dec. 18, 1978) at 58,992 (“A proposed rulemaking will be published at a later date 

regarding the treatment, storage and disposal of special waste. The Agency will be developing 

additional information in order to write substantive standards for special waste and hereby 

solicits information and comment from the public which may assist the agency in developing its 

proposals.”)]

On May 19, 1980, these proposed regulations were promulgated as final regulations that listed 

specific types of hazardous wastes subject to subtitle C regulation under RCRA. EPA determined 

that the “special wastes” should be subject to the RCRA part 264 and 265 regulations 

(implementing subtitle C) without exemption. [Footnote 12: 45 Fed. Reg. 33,154, 33,174–75 

(May 19, 1980)]

Just before these regulations were scheduled to take effect, Congress enacted the “Bevill 

Exclusion” on October 21, 1980, as part of the Solid Waste Disposal Act Amendments of 1980 

[Footnote 13: Pub. L. No. 96-482, 94 Stat. 2334, Solid Waste Disposal Act, Section 

3001(b)(3)(A)(i) (codified at 42 U.S.C. § 6921(b)(3)(A)(i)) (SWDA) (“Notwithstanding the 

provisions of paragraph (1) of this subsection, each waste listed below shall, except as provided 

in subparagraph (B) of this paragraph, be subject only to regulation under other applicable 

provisions of Federal or State law in lieu of this subtitle until at least six months after the date of 

submission of the applicable study required to be conducted under subsection (f), (n), (o), or (p) 

of section 8002 of this Act and after promulgation of regulations in accordance with 
304

subparagraph (C) of this paragraph:(i) Fly ash waste, bottom ash waste, slag waste, and flue gas 

emission control waste generated primarily from the combustion of coal or other fossil fuels.”)] 

The Bevill Exclusion, found in Section 3001(b)(3)(A)(i) [Footnote 14: 42 U.S.C. § 

6921(b)(3)(A)(i).] exempted large volume wastes generated by coal and other fossil fuel 

combustion from regulation under subtitle C temporarily while further studies were undertaken. 

[Footnote 15: Id. SWDA, Section 3001(b)(3)(A)(i) codified at 42 U.S.C. §§ 6921(b)(3)(A)(i)] 

Namely, as Section 8002(n) [Footnote 16: 42 U.S.C. § 6982(n).] required, the EPA was directed 

to conduct studies and submit a Report to Congress on the adverse effects to human health and 

the environment regarding ash disposal on a specified timeline. [Footnote 17: Id. at § 8002(n), 42 

U.S.C. § 6982(n) The eight factors listed in SWDA Section 8002(n)(1)-(8) for study include: 

source and volumes of such waste, present disposal and utilization practices, potential danger to 

human health and the environment from disposal and reuse of the meterials, documented cases 

where danger to human health or the environment from surface runoff or leachate has been 

proven, alternatives to current disposal methods, costs of such alternatives, impact of those 

alternatives on the use of coal and other natural resources, and the current and potential 

utilization of such materials.] Section 3001(b)(3)(c) [Footnote 18: 42 U.S.C. § 6921(b)(3)(C).] 

specified that the EPA was required to promulgate regulations for these wastes or determine that 

no such regulations were needed in the six months following the study, hearings and public 

comment.[Footnote 19: Id. § 3001(b)(3)(C); 42 U.S.C. § 6921(b)(3)(C).]

While the Bevill Exclusion was the result of a successful industry lobbying effort to avoid 

regulation, its stated intent was to provide EPA with additional information about the 

composition, characteristics and hazards posed by these wastes, as expressed in the 1978 

proposed “special waste” regulations. Thus, Congress required EPA to undertake a study of the 

coal combustion waste issue on a two-year time frame. [Footnote 20: SWDA, § 8002(n).] Two 

years after the Bevill amendment passed, EPA missed its October 31, 1982 deadline to complete 

the required report on fossil fuel combustion waste for Congress, and then missed its subsequent 

deadline to make a final regulatory determination on these wastes. [Footnote 21: EPA, Fossil 

Fuel Combustion Waste Legislative and Regulatory Timeline, 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/regs.htm; SWDA § 3001(b)(3)(C).]

Six years after EPA missed its deadline, in February of 1988, EPA finally published and 

submitted a Report to Congress on Wastes from the Combustion of Coal by Electric Utility 

Power Plants. [Footnote 22: EPA, Report to Congress: Wastes from the Combustion of Coal by 

Electric Utility Power Plants (EPA 530-SW-88-002) (Feb., 1988).] The report only addressed 

wastes generated from the electric utility power plant coal combustion, and failed to address comanaged utility coal combustion wastes, other fossil fuel combustion wastes, and non-utility 

boiler wastes. [Footnote 23: EPA, Fossil Fuel Combustion Waste Legislative and Regulatory 

Timeline, http://www.epa.gov/waste/nonhaz/ industrial/special/fossil/regs.htm.)] EPA also failed 

to complete its Regulatory Determination on coal combustion wastes at that time. [Footnote 24: 

2010 Proposed Rule, 75 Fed. Reg. 35,136-37.]

In 1991, due to EPA’s continued failure to complete a Regulatory Determination on coal 

combustion wastes, a citizen group filed suit against the EPA. [Footnote 25: Gearhart v. Reilly 

(Civil No. 91–2345 (D.D.C.)).] On June 30, 1992, EPA settled the case, entering into a Consent 

Decree that established a schedule for EPA to complete the Regulatory Determinations for all 
305

coal combustion wastes. The Consent Decree divided coal combustion wastes into two 

categories: (1) Fly ash, bottom ash, boiler slag, and flue gas emission control waste from the 

combustion of coal by electric utilities and independent commercial power producers; and (2) all 

other waste governed by RCRA Sections 3001(b)(3)(A)(i) and 8002(n). [Footnote 26: EPA, 

Report to Congress: Wastes from the Combustion of Fossil Fuels vol. 1 (EPA 530-R-99-010) 

(Mar. 1999) [hereinafter 1999 Report to Congress v.1], available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf.] The Decree provided a 

specific timeline for development of the regulatory framework applicable to coal combustion 

waste.

On August 9, 1993, pursuant to this Consent Decree, EPA published its Regulatory 

Determination for the first category of wastes and concluded that regulation under subtitle C of 

RCRA for these wastes was not yet warranted. [Footnote 27: 58 Fed. Reg. 42,466 (Aug. 16, 

1993), http://www.epa.gov/epawaste/nonhaz/industrial/special/mineral/080993.pdf.] For the 

second category of wastes, EPA decided that additional study was necessary. EPA prepared a 

report to Congress—again following court-ordered deadlines—that was submitted in March 

1999. [Footnote 28: See 1999 Report to Congress v.1, ; EPA, Report to Congress: Wastes from 

the Combustion of Fossil Fuels, vol. 2 (EPA 530-R-99-010) (Mar. 1999) [hereinafter 1999 

Report to Congress, v.2], available at 

http://www.epa.gov/waste/nonhaz/industrial/special/fossil/volume_2.pdf.]

Finally, on May 22, 2000, EPA published a regulatory determination for this second category of 

coal combustion wastes. [Footnote 29: 65 Fed. Reg. 32,214, (May 22, 2000). 

http://www.epa.gov/fedrgstr/EPA-WASTE/2000/May/Day-22/f11138.htm] In this 

determination, EPA made the following findings: 

- The wastes in this second category analyzed in the 2000 regulatory determination were nearly 

identical to the wastes analyzed in the first 1993 determination because the high volume wastes 

dominated the waste characteristics, even when co-managed with other waste. The wastes from 

the 1993 determination remained exempt though they were similar to the wastes currently being 

analyzed. [Footnote 30: Id. at 32,217.] Thus, the “May 2000 Regulatory Determination 

addressed not only the remaining wastes, but effectively reopened the decision on CCRs that 

went to monofills,” which were addressed in the 1993 determination. [Footnote 31: 75 Fed. Reg. 

35,128, 35,137 (June 21, 2010).]

- “Public comments and other analyses... have convinced us that these wastes could pose risks to 

human health and the environment if not properly managed, and there is sufficient evidence that 

adequate controls may not be in place.” [Footnote 32: 65 Fed. Reg. at 32,216.] Information on 

damage cases indicated a potential risk to human health and the environment.

- A more complete groundwater assessment was needed to determine the risk from arsenic. 

[Footnote 33: Id. at 32,216.]

- Improvements were being made in waste management practices due to increasing state 

oversight, although gaps remained in the current regulatory regime, which led it to retain the 

Bevill exemption. [Footnote 34: Id. at 32,215.]

On the basis of these findings, EPA stated its intent to regulate under subtitle D, but cautioned 

repeatedly that the “waste might present sufficient potential threat to human health and the 
306

environment to justify subtitle C regulation.” [Footnote 35: Id. at 32,218.] Essentially, the 

finding reflected deep uncertainty. Numerous times, EPA stated that, if circumstances change, 

EPA would “revisit” its determination. EPA stressed the temporal and contingent nature of its 

determination by qualifying its rationales adding “at this time” at least a dozen times. [Footnote 

36: Id. at 32,221, 32,222, 32,227, 32,228, 32,230, 32,231, 32,232, 32,234, 32235.]

EPA further outlined the factors that would be persuasive in regulating under subtitle C instead 

of subtitle D. In summary, EPA found that subtitle C regulation would be necessary: if a trend in 

protective CCR management did not continue; if available information indicated actual or 

potential damage to human health or the environment, adverse environmental effects, or 

inadequate state or federal regulation; if the report of the National Academy of Sciences 

regarding mercury—a major component of coal combustion waste—showed adverse health 

effects; or in the event of increased ‘‘risk[s] posed by managing coal combustion solid wastes if 

levels of mercury or other hazardous constituents change due to any future Clean Air Act air 

pollution control requirements for coal burning utilities.’’ [Footnote 37: Id. at 32,214, 32,218, 

32,221.]

Between 2000 and 2009, EPA made little progress toward regulation of coal ash. A report from 

EPA’s Office of the Inspector General investigating the agency’s inaction on coal ash regulation 

underscored that: “EPA has not published a proposed rule on CCW landfill and surface 

impoundments in the approximately 9 years since its regulatory determination on CCW disposal 

in landfills and surface impoundments.” [Footnote 38: EPA, Office of the Inspector General, 

Response to EPA Administrator’s Request for Investigation into Allegations of a Cover-up in the 

Risk Assessment for the Coal Ash Rulemaking 6 (Rept. 10-N-0019) (Nov. 2, 2009), available at 

http://www.epa.gov/oig/reports/2010/20091102-10-N-0019.pdf.] However, over the past nine 

years, EPA has gathered additional data, held public meetings, updated the damage cases and the 

quantitative risk impact assessment. [Footnote 39: Id. at 3.]

EPA acknowledges in the present rulemaking that many of the concerns highlighted in its 2000 

Regulatory Determination have been triggered over the past ten years: "Review of the 

information developed over the past ten years has confirmed EPA’s original risk concerns, and 

has raised significant questions regarding the accuracy of the Agency’s predictions [in the 2000 

Regulatory Determination] regarding anticipated improvements in management and state 

regulatory oversight of these wastes." [Footnote 40: 75 Fed. Reg. at 35,149.]

The original Bevill Amendment suggested that EPA should regulate coal combustion wastes if 

further study yielded evidence proving that it was a threat to human health and the environment. 

In the 30 years since that Amendment was passed, EPA’s studies and research have produced a 

growing body of evidence that overwhelmingly support a subtitle C regulation.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
307

Comment Number: EPA-HQ-RCRA-2009-0640-06316-6

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[Copy of Lisa Evans, "Failing the Test: The Unintended Consequences of Controlling Hazardous 

Air Pollutants from Coal-Fired Power Plants," Earthjustice]

[Copy of 2009 Petition for Rulemaking by Earthjustice et. al.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06326-2

Organization1:Old Dominion Electric Cooperative (ODEC)

Commenter1: Lisa D. Johnson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

From the start, ODEC wants to make it clear that we strongly oppose regulation of (CCRs) as a 

hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA). 

ODEC is a member of the National Rural Electric Cooperative Association (NRECA), and we 

agree with NRECA's position that EPA's proposal to regulate CCRs under Subtitle C of RCRA is 

arbitrary and capricious and in direct contravention of the Bevill Amendment. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06326-5

Organization1:Old Dominion Electric Cooperative (ODEC)

Commenter1: Lisa D. Johnson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA may not reverse its final Regulatory Determinations that CCRs do not warrant regulation
308

under RCRA Subtitle C. Even setting aside EPA's failure to comply with the Regulatory 

Flexibility Act as described above, the Proposal's Subtitle C option is fundamentally flawed 

because EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations, both of 

which found that CCRs do not warrant Subtitle C regulation. Congress established a detailed 

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

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

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06339-4

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:

3) EPA’s proposed Subtitle C Option is arbitrary and capricious, an abuse of discretion, and 

otherwise not in accordance with the law The Administrative Procedure Act empowers courts to 

review “agency action, findings, and conclusions” if they are “arbitrary and capricious, an abuse 

of discretion, or otherwise not in accordance with law.”[Footnote 24: 5 U.S.C. § 706(2)(A).] 

Before taking an agency action, such as rule making, the agency is required to “examine the 

relevant data and articulate a satisfactory explanation for its action including a rational 

connection between the facts found and the choices made.”[Footnote 25: Motor Vehicle Mfrs. 

Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77

L.Ed.2d 443 (1983).] The court must then review that explanation and evaluate “whether the 

decision was based on a consideration of the relevant factors and whether there has been a clear 

error of judgment.”[Footnote 26: Id.]

A rule is arbitrary and capricious “if the agency has relied on factors which Congress has not 

intended it to consider, entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.”[Footnote 27: Id.]
309

In this case, EPA’s action in proposing a final rule contrary to its earlier final determination 

regarding the Bevill Wastes in its Report to Congress is, first of all, “not in accordance with 

law.” The Bevill Amendment directed the EPA to complete a study considering all the listed 

factors equally and then make a single determination whether the CCRs should be regulated 

under Subtitle C. Once EPA made this determination, it had no authority to institute a notice of 

proposed rulemaking, and a reviewing court is likely to rule against the EPA. The Bevill 

Amendment does not provide for a reconsideration of that determination more than 30 years after 

the statute was enacted and more than 20 years after EPA’s final determination (in 1988) that the 

Bevill Wastes should not be regulated under Subtitle C.

Moreover, “no provision of the Bevill Amendment assigns an absolute priority to any one 

[study] factor, including hazardousness.”[Footnote 28: See Environmental Defense Fund v. EPA, 

852 F.2d 1309, 1314 (D.C. Cir. 1988) (discussing the Bevill Amendment in the context of 

mining wastes). See also RCRA § 8002(n), 42 U.S.C. § 6982(n). (Congress mandated that the 

EPA Administrator should conduct a study evaluating the following eight factors and submit its 

findings in a Report to “the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives”: 1) the source and volumes of CCR materials generated per year; 2) present 

disposal and utilization practices; 3) potential danger, if any, to human health and the 

environment from disposal and reuse of such materials; 4) documented cases in which danger to 

human health or the environment from surface runoff or leachate has been proved; 5) alternatives 

to current disposal methods; 6)costs of such alternatives; 7) the impact of those alternatives on 

the use of coal and other natural resources; and 8) the current and potential utilization of such 

materials).] In fact, as pointed out by the District of Columbia Federal Court of Appeals in an 

analogous discussion of mining wastes, the legislative history “strongly suggests that Congress 

designed the Bevill Amendment to break with the previous approach to regulation of hazardous 

industrial wastes.”[Footnote 29: Environmental Defense Fund v. EPA, 852 F.2d at 1314] The 

D.C. Court of Appeals elaborated as follows:

With respect to ordinary industrial wastes, the structure of Subtitle C manifests a congressional 

assumption that these wastes, if found to be “hazardous” [under the criteria for identifying and 

listing wastes], would also prove dangerous to health and environment. A finding of a hazardous 

characteristic was sufficient to trigger regulation. See 40 C.F.R. §§ 261.11(a)(1). While the § 

8002(p) studies of [Bevill] wastes necessarily require an evaluation of hazardousness, the 

provisions mandating these studies nowhere mention “hazard.” In § 8002, Congress asks EPA to 

investigate risk or danger to human health and environment-a context-specific concept. This 

evinces a congressional understanding that “hazardous” [Bevill] wastes might not prove 

dangerous. This understanding was most clearly expressed in the Conference Report discussing 

the later 1984 HSWA, § 3004(x):
310

This amendment recognizes that even if some of the special study wastes are determined to be 

hazardous it may not be necessary or appropriate, because of their special characteristics or other 

factors, to subject such wastes to the same requirements that are applicable to other hazardous 

wastes, and that protection of human health and the environment does not necessarily imply the 

uniform application of requirements developed for disposal of other hazardous wastes. [See 

H.R.Conf.Rep. No. 1133, 98th Cong., 2d Sess. 93, reprinted in 1984, U.S.Code Cong. & 

Admin.News 5576, 5664.]

The legislative history of the Bevill Amendment confirms that Congress eschewed a narrow 

technical approach to imposition of Subtitle C controls, choosing to evaluate the need for 

regulations by [focusing] on the actual dangers posed by [Bevill] wastes. Congressman Bevill's 

discussion of the Amendment is replete with references to “the degree of hazard posed by these 

wastes” and the need to develop “meaningful regulation to deal with the truly hazardous waste 

products which threaten our communities.” 126 Cong.Rec. 3361 (Feb. 20, 1980) (remarks of 

Rep. Bevill) (emphasis added). The goal of the study of [Bevill] wastes was to “determine 

whether, if at all, these materials present any hazard to human health or the environment.” Id. 

(emphasis added). These and other passages make plain that, despite his use of the term 

“hazard,” Rep. Bevill was directing attention to the actual risk posed by the wastes. This 

approach is clearly at odds with EDF's interpretation of the statute as mandating Subtitle C 

regulation upon a finding of hazardousness.

The § 8002(p) study provision lists cost as an independent factor. During the discussion of the 

Amendment, Rep. Bevill stated, “[t]hese studies would include evaluation of the economic and 

environmental aspects of existing and alternative disposal and reuse options. EPA would also be 

required to focus on the impact of these alternatives on the use of our coal and other natural 

resources.” 126 Cong. Rec. 3361. These remarks confirm that Congress intended attention to 

cost and the economic impact of regulatory controls in making a regulatory determination. The 

emphasis on economic factors is consistent with Congress' obvious goal in enacting the Bevill 

Amendment-to relieve the [Bevill-waste industries] of the onerous economic burden of stringent 

Subtitle C controls if at all possible. If [Plaintiff] deems undesirable separate consideration of the 

cost of regulation, this objection should be addressed to Congress and not to this court.[Footnote 

30: Environmental Defense Fund v. EPA, 852 F.2d at 1314-1316.]

Likewise, EPA’s focus on the alleged hazardousness of CCRs, without giving equal priority to 

the negative impact on the beneficial use of CCRs if regulated under Subtitle C, is in clear 

violation of the language and legislative intent of the Bevill Amendment, which was in part to 

relieve the utility industry “of the onerous economic burden of stringent Subtitle C controls if at 

all possible.”[Footnote 31: Id.]
311

Finally, if Congress had intended to give the EPA authority to promulgate regulations or make 

periodic reviews and adjustments to the level of regulation for CCRs without EPA first 

submitting the statutorily mandated report to Congress examining the eight statutory 

factors,[Footnote 32: See n.28, supra] Congress would have included such provision(s) in the 

statute as it did in other environmental quality statutes. For example, in the Clean Air Act, 

Congress directed the EPA to periodically review, revise, and publish air quality criteria for 

pollutants;[Footnote 33: 42 U.S.C. §7408] periodically review, revise, and publish the statutory 

list of hazardous air pollutants;[Footnote 34: 42 USC §7412(b)(2)] and at five year intervals, 

complete a thorough review of the criteria for pollutants published under section 7408 and the 

national ambient air quality standards promulgated under section 7409 and make such revisions 

as may be appropriate.[Footnote 35: 42 U.S.C. §7409(d)]

In the Clean Water Act, Congress directed the EPA to review and revise its published water 

quality standards from time to time;[Footnote 36: 33 U.S.C. §1314(a)] review its published 

regulations for effluent limitations annually and revise them if appropriate;[Footnote 37: 33 

U.S.C. §1314(b)] from time to time review, revise, and publish information on the processes or 

operating methods which result in the elimination or reduction of the discharge of 

pollutants;[Footnote 38: 33 U.S.C. §1314(c)] and from time to time, as technology and 

alternatives change, revise its published regulations establishing Federal standards of 

performance for new sources of pollution.[Footnote 39: 33 U.S.C. §1316]

For example, Arizona Electric Power Cooperative’s facility is regulated by the Arizona 

Department of Water Resources, the Dam Safety and Flood Mitigation Division, and the Arizona 

Department of Environmental Quality. Both agencies maintain rigorous compliance programs 

and conduct frequent inspections to ensure that applicable maintenance and safety standards, 

including groundwater monitoring are followed. The EPA also recently affirmed the structural 

integrity and proper operation of the impoundment through an independent assessment. This 

assessment resulted in a satisfactory rating at the AEPCO facility, which is the highest possible 

rating.

Because the Bevill Amendment was specific and limited in what it authorized the EPA to do and 

regarding Congress’ reasons for doing it the way it did, the EPA’s Proposed Rule is not in 

accordance with the law and is an abuse of the EPA’s discretion. Additionally, a court reviewing 

under the Administrative Procedures Act is likely to find EPA’s Proposed Rule arbitrary and 

capricious because EPA has failed entirely to consider important aspects of the problem; because 

EPA is relying on factors in a way in which Congress has not intended it to consider them; and 

because EPA has offered an explanation for its decision that runs counter to the evidence before 
312

the agency.

For example, EPA’s proposed rule (1) is inconsistent with the Bevill Amendment’s directive that 

any final determination not impair CCR beneficial use; (2) is at odds with Congress’s express 

directive that any regulatory program for CCRs not discourage the use of coal by imposing 

undue regulatory costs on the management of CCRs; (3) disregards the nearly unanimous views 

of the federal and state agencies, with which the Bevill Amendment directs EPA to consult in 

reaching a final regulatory determination, that Subtitle C regulation is not warranted for CCRs; 

(4) is inconsistent with EPA’s own findings that state programs can properly address CCR 

disposal practices under RCRA Subtitle D; and 5) inappropriately includes potential damage 

cases in its evaluation of the appropriate regulatory option for CCRs when the Bevill 

Amendment directs the Agency to evaluate only those instances where such danger has been 

proved when considering the “documented cases” of danger from the management of 

CCRs.[Footnote 40: See specific examples set out in NRECA’s Comments to this 2010 Proposed 

Rule, which are adopted and approved herein by reference.]

Because the EPA has relied on factors which Congress has not intended it to consider; entirely 

failed to consider important aspects of the problem; offered explanations for its decision that runs 

counter to the evidence before the EPA; and lacks the authority to reverse its 1993 and 2000 

Regulatory Determinations, both of which found that CCRs do not warrant Subtitle C regulation, 

a reviewing court would likely find any EPA final rule under which Bevill Wastes are regulated 

under Subtitle C to be arbitrary and capricious, an abuse of discretion, and otherwise not in 

accordance with the law.[Footnote 41: Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06356-2

Organization1:U.S. Chamber of Commerce

Commenter1: William L. Kovacs

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
313

B. 42 U.S.C. § 6966(e) states EPA “shall conduct continuing evaluations of potential loss or 

shifts of employment which may result from the administration or enforcement of 

[RCRA]...including, where appropriate, investigating threatened plant closures or reductions in 

employment allegedly resulting from such administration or enforcement” (emphasis added). 

However, there is no evidence in the record that EPA has evaluated, much less calculated, the 

potential loss or shifts in employment which may result from administration or enforcement of 

the proposed rules. See generally 75 Fed. Reg. at 35143 (regulatory benefits to cost table 

excludes employment impact), 35224-230 (EPA’s analysis of “executive orders and laws 

addressed in the action” does not include § 6966(e)). 

EPA’s failure to comply with § 6966(e) cannot be justified. First, the statutory command is clear 

and direct. Id. (EPA “shall conduct continuing evaluations” of job losses or shifts). Second, EPA 

is clearly on notice regarding the proposed rules’ potentially devastating impact on American 

jobs, based on comments in this Docket from Congress and others. See Letter from Rep. Rick 

Boucher, et al. to Lisa Jackson (July 29, 2010)(“we have grave concerns that this proposal could 

destroy jobs and increase electricity rates”)(the Majority Letter); Letter from Sen. Robert Casey 

to Lisa Jackson (July 28, 2010)(proposed rules will cause substantial job losses and lead to plant 

shut-downs). Given the evidence in the record, EPA should comply with RCRA before taking 

any of the actions proposed in this Docket

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06360-83

Organization1:ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Clean Water Act provides additional protection of surface waters through federal and state 

water quality laws and requires mine operators to meet strict water quality standards in their 

surface water discharges. State water quality programs, along with the Federal Safe Drinking 

Water Act, offer further water quality protection (see 30 C.F.R. 816.42; 40 C.F.R. Part 434).

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06400-2

Organization1:Waste Management (WM)
314

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.2 11.3

Comment Excerpt Text:

We are surprised, however, by the false dichotomy posed in EPA’s proposal of two options to 

regulate CCRs when disposed: either as a Resource Conservation and Recovery Act (RCRA) 

Subtitle C regulated hazardous waste or as a RCRA Subtitle D nonhazardous waste subject only 

to citizen suit enforcement, not permitting, at disposal facilities. RCRA does not compel this 

legal interpretation of EPA’s authority. Nor is it wise to view RCRA through this narrow lens, 

because it creates an artificial constraint on EPA’s ability to fulfill its mission under RCRA to do 

what is necessary to protect human health and the environment. By taking the position that 

EPA’s authority under RCRA goes to only two relatively small waste streams, EPA abdicates 

responsibility to assure protection in the handling of the vast majority of wastes generated in the 

U.S.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06400-4

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 2.1.2 7.3.3 7.4.2

Comment Excerpt Text:

Long-term implications of EPA’s interpretation of its 4010 authority: Most of EPA’s rationale 

for considering RCRA Subtitle C regulation of CCRs derives wholly from its self-imposed 

limitation on RCRA to provide EPA regulatory authority only for hazardous wastes and 

municipal solid waste (“MSW”) [Footnote 2: As EPA acknowledges, “the technical unit design 

and groundwater monitoring requirements that will effectively protect human health and the 

environment under either option are quite similar.” CCR Proposal at 35159.]. This constrained 

reading of RCRA leaves EPA now and in the future with very little authority to meet RCRA’s 

mandate to protect human health and the environment. Under the rational of this rule, of the 7.6 

billion tons of solid waste EPA estimates to be in existence [Footnote 3: See 

http://www.epa.gov/osw/nonhaz/index.htm. ] , the Agency would have regulatory authority over 

only 46 million tons of hazardous waste (6.9 million tons of non-wastewater) (CCR Proposal at 

35172) and 250 million tons of MSW . This constitutes less than four percent of the wastes for 

which RCRA could provide protection.

This limitation is very shortsighted, and undervalues the important protections EPA and the 
315

states have afforded communities under RCRA authority. Our experience under the RCRA 

Subtitle C and D programs has been comparable; under both programs, we see state regulators 

bringing expertise and rigor to the task of permitting and overseeing hazardous waste and MSW 

landfills, assuring the facilities achieve RCRA’s goal of protecting human health and the 

environment [Footnote 4: For a recent assessment of the effectiveness of EPA’s regulatory 

program for MSW landfills, see http://www.wm.com/sustainability/pdfs/Geosyntec_report_-

_Environmental_Protection_at_the_Managed_Solid_Waste_Landfill_06201.pdf.]. When EPA 

has provided the kinds of clear and detailed guidelines evident in the RCRA Subtitle C 

regulations and Subtitle D criteria for MSW landfills, state regulatory authorities responded with 

programs implementing the high siting, technical and operational standards EPA intended. The 

states assure those standards remain in force for the life of a facility’s permit, including the 

necessary post-closure monitoring period. Through the approval process and as states revise their 

programs over the years, EPA Headquarters and, in particular, the Regions provide scrutiny, 

technical assistance and oversight.

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

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

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

The commenter is also referred to Unit IX of the preamble for a discussion of how EPa envisions 

States and EPA working together in the implementation of this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06415-3

Organization1:The Virginia Coal Association, Inc. (VCA)

Commenter1: John T. Heard

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Can or should EPA reverse its 1993/2000 Bevill regulatory determinations concerning CCRs?

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so called 

Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory 

Determinations for CCRs. For the following reasons, the VCA does not believe that the EPA can 

do so.

In October of 1980, Congress adopted the Bevill Amendment, which established a special 

process that EPA was required to follow before CCRs and the other special wastes could be 

regulated as hazardous wastes under Subtitle C of RCRA. The Bevill Amendment established a 

temporary exemption from regulation under Subtitle C, until the completion of a study and 

submittal of a report described below. Congress directed EPA to conduct a "detailed and 

comprehensive study" on the adverse effects on human health and the environment of CCRs and 

other special wastes. EPA failed to meet the Bevill Amendment's statutory deadline of October 

21. 1980 for publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. 

Reilly, No. 91-2435 (D.D.C. June 30, 1992), EPA entered into a Consent Decree which divided 
316

fossil fuel combustion wastes into two categories. and agreed to follow the Bevill process 

separately for the two categories. On August 9, 1993, EPA issued a regulatory descrmination that 

regulation of four large volume fossil fuel combustion wastes from coal fired utilities (fly ash, 

bottom ash, boiler slag, and flue gas desulfurization waste) as hazardous is "unwarranted " under 

RCRA Subtitle C. In the second phase of the Bevill utility industry process, EPA addressed 

issues of co-management, ash derived from co-burning of coal from non-hazardous solid waste, 

ash derived from clean coal combustion, and combustion residues from burning oil and natural 

gas. EPA submitted its second utility Report to Congress on March 31. 1999. On April 25, 2000, 

EPA issued its Phase II Regulatory Determination. EPA concluded in the Phase II Bevill 

Regulatory Determination that hazardous waste regulation under Subtitle C for the remaining 

fossil fuel combustion wastes "[was] not warranted." With the issuance of the 2000 Regulatory 

Determination, the Bevill process for fossil fuel combustion wastes, including CCRs, was 

completed.

The special Bevill process established by Congress provided for a one-time evaluation of CCRs 

and the other special wastes. The Bevill Amendment by its terms called for a "study " and a 

"report." The use of the singular, as well as the statutory context, means that Congress 

deliberately established a one-time study and one-time Report to Congress obligation. Similarly, 

Congress called for a one-time regulatory determination when it stated that "not later than six 

months after the date of submission of the applicable study " EPA should "either determine to 

promulgate regulations . . . or determine that such regulations are unwarranted." Congress made 

it clear it was establishing a one-time study, report and regulatory determination obligation when 

it required that the report and study be completed by a date certain, i.e . . October 21, 1980. 

Finally, the Bevill Amendment established a temporary exemption from RCRA Subtitle C 

regulation for the special wastes, an approach consistent with a one-time study, report and 

regulatory determination. Moreover, if Congress had intended to extend the Bevill process thirty 

years beyond the 1980 date Congress established for completion of the Bevill study and Report, 

Congress would have done so explicitly. The fact that Congress did not do so further confirms 

that Congress intended for the Bevill process to consist of a one-time report, study and regulatory 

determination for CCRs.

In addition, the D. C. Circuit Court of Appeals in Solile Corp. v. EPA, 952 F. 2d. 473 (D.C. Cir. 

1991), ruled that "The statutory provision directing EPA to study Bevill wastes suggests by its 

terms that a one-time study is sufficient. " The court went on to state "this court's holding in EDF 

11 secures EPA's position that a one-time determination is sufficient " and "we clearly enough 

rejected the theory that Congress intended the coverage of the Bevill exclusion to evolve with 

time." In fact, in its briefs in the Solile case, EPA made the following statements about the 

Agency's interpretation of the Bevill amendment:

"Both the administrative record and Congressional intent clearly indicate that the Bevill 

Amendment was intended to provide a temporary exclusion, pending further study, over a fixed 

time period. Congress directed EPA to conduct a single study of wastes generated by mineral 

mining and processing facilities, because of concern that existing wastes might not be readily 

amenable to Subtitle C controls and might pose relatively low hazard to human health and the 

environment. Moreover, contrary to some commenter's assertions, the statutory language 

includes explicit time limit on the Bevill exclusion, which apply to the submission of the 
317

required Report to Congress and subsequent regulatory determination." 

" ...From this evidence of congressional intent, EPA reasonably determined that Congress 

authorized EPA to make a one-time interpretation or snapshot of mineral processing wastes, 

rather than a continuing series of studies and regulatory determinations . . . . "

"There is nothing in the statute itself which suggests that the Bevill process should be an 

ongoing, evolving process, with updated reports to Congress and regulatory determinations." 

EPA should not be allowed to reverse the position it previously took in a parallel Bevill 

rulemaking and before the D.C. Circuit.

Finally, even if EPA had the authority to reverse its August 1993 and May 2000 Bevill 

Regulatory Determinations (which it does not as demonstrated above), EPA has failed to go 

through the Bevill process before proposing a reversal of the Bevill Regulatory Determinations, 

and therefore cannot proceed with its Subtitle C option. The Bevill process as established by 

Congress must include each of the following steps:

1) EPA must study CCRs pursuant to eight study factors;

2) EPA must then submit a Report to Congress, i.e., a report on such study and the findings of 

the study to the House Committee on Energy and Commerce and the Senate Committee on 

Environment and Public Works; and

3) Following submission of the Report to Congress to the enumerated congressional committees, 

EPA must conduct public hearings and provide an opportunity for comment on the Report, and 

then either determine to promulgate regulations under Subtitle C or determine that such 

regulations are not warranted.

4) If EPA determined that such regulations were warranted, EPA must then engage in a notice 

and comment regulation to promulgate the regulations. 

EPA has failed to comply with this special Bevill process. First, EPA's purported analysis of the 

eight Bevill study factors as applied to CCRs is insufficient and superficial. Among other things, 

EPA is explicitly required to evaluate the "costs of alternatives" to current disposal methods. 

EPA's evaluation of the costs to the industry of the Subtitle C options in the proposed rule is 

woefully lacking in scope and depth. Moreover, EPA has not even attempted to argue that it has 

met the Report to Congress prong of the Bevill process. Prior to EPA's proposal to reverse its 

1993 and 2000 Regulatory Determinations and adopt a Subtitle C approach for CCRs, EPA has 

not prepared a Report, and did not submit a Report to the enumerated Congressional committees 

before proposing to reverse its Regulatory Determinations in the proposed rule. In addition, 

EPA's proposal to reverse its 1993 and 2000 Regulatory Determinations is not based, as 

explicitly required by statute, on public hearings and public comment on the non-existent Report 

to Congress. Therefore, EPA has not met its statutory obligation which conditions any 

Regulatory Determination on an evaluation of the results of such public hearings and any 

comments on the Report to Congress. Finally, EPA's June 21, 2010 Proposal envisions a 

decision-making process involving the simultaneous reversal of the prior Regulatory 
318

Determination for CCRs, the issuance of a new Regulatory Determination for CCRs, and the 

adoption of new Subtitle C regulations for CCRs. This accelerated approach violates the 

sequential nature of the Bevill process established by Congress, which provided for a Regulatory 

Determination to be followed at a later time by the issuance of regulations.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-29

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 2.1.2

Comment Excerpt Text:

In section I.D., p. 35136, Regulation of solid wastes under RCRA Subtitle D, the legal analysis 

claims that EPA does not have authority to establish nationwide standards for non-municipal 

solid wastes. It can be noted that States have generally adopted, as a minimum, the part 258 rules 

and incorporated them into their previously established programs. If EPA feels that it lacks 

authority to implement such an approach, there are a couple of tactics that could be used. One is 

to seek congressional authority for the approach. The other is to draft a rule similar to s. 40 CFR 

761.77, TSCA coordinated approval, as a stopgap until EPA seeks and obtains federal authority 

to authorize State programs to regulate CCR waste disposal. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-32

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5
319

Comment Excerpt Text:

If EPA wants to maintain federal oversight in a Sub D context, it should be easy to draft rule 

language similar to the s. 40 CFR 761.77, authority for a TSCA coordinated approval, to 

establish as RCRA Sub D coordinated approval process. 

Under this authority, State agencies would have primary responsibility to perform review and 

issue approvals/permits, but EPA Regions would review the proposed plants and the draft 

approvals/permits for compliance with their concerns and, if need be, issue a concurrence letter 

or similar regulatory communication. This approach could serve as a permanent arrangement or 

serve as a stopgap until EPA seeks and obtains federal authority to authorize State programs to 

regulate CCR waste disposal. It should minimize workload on the Regional staff, utilize existing 

State authorities, staff, and procedures efficiently, reduce potential cost impacts on both state and 

federal programs, and maintain the current status of States being the primary contact and 

enforcement route for utility ash disposal sites. 

EPA could still establish a set of requirements to be met, at a minimum, by CCR landfill 

operators. This would present a challenge and a target for State agencies to utilize in State rule 

revisions, and also provide substantive basis for States to impose requirements listed in federal 

requirements if State rules do not include them. This means that it should be possible for rapid 

implementation of the CCR rule change. If EPA was concerned about the content of State rules 

including, at a minimum, all federal requirements, the rule could include a time limit for States to 

seek rule changes through their individual rule-making procedures and demonstrate the 

achievement to the Regions. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06529-2

Organization1:NiSource Corporate Services

Commenter1: Dale A. Helmers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The critical flaw in proposing the Subtitle C option is that it is premised on the notion that EPA 

is at liberty to reverse its final Regulatory Determination that CCRs do not warrant regulation 

under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse its final 

Regulatory Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. 

Even assuming for purposes of argument that the statute did authorize such reversal, EPA’s 

proposal to regulate CCRs under Subtitle C does not comport with the Bevill Amendment’s eight 

statutory study factors or the statutorily-prescribed decision-making process, and would be 

arbitrary and capricious. For example, the Subtitle C option would adversely impact CCR 

beneficial use and impose unwarranted and excessive costs on the utility industry
320

Response: The Agency acknowledges and appreciates the comment however the Agency is not 

pursuing a subtitle C rule for the management of CCR and as such this comment is outside the 

scope of the rulemaking.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-7

Organization1:NiSource Corporate Services

Commenter1: Dale A. Helmers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As demonstrated by these comments, many of the operations at electric generating facilities are 

very different then those at a typical RCRA hazardous waste generator or 

treatment/storage/disposal facility. As such, when the Subtitle C regulations were first 

promulgated and became effective in 1980, very few electric generating facilities believed 

themselves to be subject to them. Additionally because CCRs were not subject to RCRA when it 

was initially promulgated, NiSource did not have a realistic, fair, or reasonable opportunity to 

comment on how these provisions affect its CCR management and disposal operations. For EPA 

to now disregard comments on those provisions as they relate to the special wastes subject to this 

rulemaking violates the requirements of notice and comment as provided by the Administrative 

and Procedures Act (5 U.S.C. § 553) and is arbitrary and capricious

Response: The Agency acknowledges and appreciates the comment however the Agency is not 

pursuing a subtitle C rule for the management of CCR and as such this comment is outside the 

scope of the rulemaking.

Comment Number: EPA-HQ-RCRA-2009-0640-06532-2

Organization1:Southern Illinois Power Cooperative

Commenter1: Leonard F. Hopkins

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A major flaw in the Subtitle C option is that it is premised on the notion that EPA is at liberty to 

reverse its final Regulatory Determination that CCRs do not warrant regulation under Subtitle C 

of RCRA. Because the statute does not authorize EPA to reverse if final Regulatory 

Determination, EPA may not adopt the Subtitle C hazardous waste option for CCRs. Even 

assuming for purposes of argument that the statute did authorize such reversal, EPA’s proposal 

to regulate CCRs under Subtitle C does not comport with the Bevill Amendment’s statutorily-
321

prescribed decision-making process and would be arbitrary and capricious. For example, the 

Subtitle C option would cripple CCR beneficial use and impose unwarranted and excessive costs 

on the utility industry

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. Furthermore, EPA is 

not promulgating a subtitle C rule for the management of CCR, therefore this component 

pertaining to subtitle C are outside the scope of this rulemaking. 

Comment Number: EPA-HQ-RCRA-2009-0640-06532-7

Organization1:Southern Illinois Power Cooperative

Commenter1: Leonard F. Hopkins

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As discussed below, the operations at these sources are very different then those at a typical 

RCRA source. Thus, these sources, and in particular SIPC, did not have a realistic, fair, or 

reasonable opportunity to comment on these provisions when they were first proposed. For EPA 

to now disregard comments on those provisions as they relate to the sources subject to this 

rulemaking violates the requirements of notice and comment as provided by the Administrative 

and Procedures Act (5 U.S.C. § 553) and is arbitrary and capricious

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06534-2

Organization1:Lafarge North America Inc.

Commenter1: Brian Gasiorowski on behalf of Craig S. Campbell

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Through the “Bevill amendment” to RCRA enacted in 1980, Congress prohibited EPA from 

regulating CCRs under Subtitle C unless and until EPA followed several steps and made certain 

findings.[Footnote 4: RCRA §§ 3001(b)(3)(A)(i), 8002(n).] Under the statutory mandate, EPA 

must first conduct a “detailed and comprehensive study” and submit a Report to Congress on the 

adverse effects of CCRs. 

Congress specified that the study must analyze many factors, including “the current and potential 
322

utilization of such materials.”[Footnote 5: RCRA § 8002(n)(8).] In 1999, EPA conducted such a 

study and issued a Report to Congress based on such a study. Congress further provided that 

after the issuance of such a Report to Congress, EPA was required to issue a “determination”

(hereafter, “Regulatory Determination”) after public hearings and written comments. Congress 

specified that in the Regulatory Determination, EPA should – based on the information 

developed in the Report to Congress – either (i) determine to issue Subtitle C regulations for 

CCRs or (ii) determine that Subtitle C regulations are unwarranted. EPA completed this statutory 

process in 2000 under Administrator Browner, with its issuance of a Regulatory Determination 

finding that Subtitle C regulations for CCRs are unwarranted.[Footnote 6: 65 Fed. Reg. 32214 et 

seq., (May 22, 2000).]

As shown in the comments of the ACAA, Administrator Browner’s 2000 decision has had a 

salutary effect on CCR beneficial use practices: the percentage of CCRs beneficially reused has 

risen from twenty-three percent (23%) to forty-two percent (42%).[Footnote 7: ACAA Coal 

Combustion Products 2009 Production and Use Survey, October 29, 2010.] As explained 

throughout these comments, Lafarge has a vital interest in assuring that beneficial uses of CCRs 

continue in the United States.

EPA’s current “co-proposal” contains a Subtitle C option and a Subtitle D option. As shown 

throughout these comments, Lafarge strongly prefers the approach of regulating CCRs under 

Subtitle D of RCRA over regulation under Subtitle C. For all the reasons set forth in the 

comments on the co-proposal filed by the Utilities Solid Waste Activities Group 

(“USWAG”),[Footnote 8: We have reviewed a final draft of the USWAG comments.] we believe 

that proper application of the statutory factors based on the record before the agency compels the 

conclusion that – just as Administrator Browner found in 2000 – regulation of CCRs is 

unwarranted. We also endorse the portions of the USWAG comments explaining why EPA has 

not followed the statutory process under the Bevill Amendment for subjecting CCRs to RCRA 

Subtitle C, and why any efforts by EPA to do so without performing a new study, issuing a new 

Report to Congress, and issuing a new, independent Regulatory Determination as a separate step, 

would be fundamentally flawed as a legal matter

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06534-4

Organization1:Lafarge North America Inc.

Commenter1: Brian Gasiorowski on behalf of Craig S. Campbell

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
323

Comment Excerpt Text:

As EPA has neither performed nor completed a single one of these mandatory statutory steps 

before issuing its Subtitle C proposed regulations for CCRs, any final Subtitle C regulations 

issued following the proposal would be fatally defective as a legal matter. Such a regulation 

would be vacated by a reviewing court under two longstanding Administrative Procedure Act 

(APA) standards. Such a final rule would be both “in excess of statutory jurisdiction, authority, 

or limitations,” and issued “without observance of procedure required by law.” 5 U.S.C. § 706.

We recognize that EPA may take the position that such complete disregard of statutorilymandated steps and procedures could be deemed “harmless error,” possibly under the theory that 

interested parties had the opportunity to comment on the proposed rule. D.C. Circuit caselaw is 

clear, however, that when a statute mandates special procedural steps going beyond simple APA 

notice-and-comment rulemaking, an agency action taken in disregard of those special steps 

cannot be countenanced on the grounds of “harmless error.” (The APA provides that “due 

account shall be taken of the rule of prejudicial error.” 5 U.S.C. § 706.) Two instructive D.C. 

Circuit cases are Gerber v. Norton, 294 F.3d 173 (D.C. Cir. 2002), and Alabama Power v. FERC, 

160 F.3d 7 (D.C. Cir. 1998). In Gerber, the Fish and Wildlife Service was required by statute to 

make an “independent finding as a prerequisite” to issuing a certain type of permit. The Service 

had not made such an independent finding prior to processing the permit at issue. The Service 

argued before the Court that since the independent “finding” was essentially incorporated within 

the permit itself, the error was “harmless” under the APA. 294 F. 3d at 185.

The Court addressed the APA “prejudicial error” doctrine at some length, id. at 181-82. The 

Court concluded that the Service’s failure to follow a statutorily-mandated step was reversible 

regardless of the alleged lack of prejudice. “Because the Service did not make the independent 

finding required by the ESA as a prerequisite to the issuance of an incidental take permit, the 

issuance of the permit violated the statute.” Id. at 185.

At issue in Alabama Power was a section of the Federal Power Act that required FERC, “before 

prescribing any rules” of a certain type, to notify affected State commissions and seek their 

views and recommendations. 160 F.3d at 12. In issuing the rule under review, FERC had most 

clearly not provided such a prior notice to the State commissions. FERC argued that such a 

failure was “harmless” because the State commissions all eventually had notice through the 

rulemaking, and all had the opportunity to present their views. Id. 

The D.C. Circuit addressed the APA “prejudicial error” rule in this context, and squarely rejected 

the notion that such a “belated notice” could suffice to meet the clear statutory command. Id. The 

Court accordingly vacated the rule under review. Id. at 14. The D.C. Circuit has often ruled that 

where an agency has clearly failed to comply with procedural steps demanded by statute, parties 

need not be put to any burden to establish potential harm to defeat an agency’s contention of lack 

of prejudicial error. See, e.g., Chamber of Commerce v. SEC, 443 F.3d 890, 904 (D.C. Cir. 

2006) (and cases cited therein) (“The court has not required a particularly robust showing of 

prejudice . . .”)

In several cases cited by the Chamber of Commerce decision, the D.C. Circuit has repeatedly 

ruled that “if there is any uncertainty at all as to the effect” of the failure to follow statutorily-
324

prescribed procedures, agencies’ claims of harmless error must fail. Sprint v. FCC, 315 F.3d 369, 

376 (D.C. Cir. 2003.) And in the EPA case Weyerhaeuser v. Costle, 590 F.2d 1011 (D.C. Cir. 

1978), the Court summed up the appropriate standard as follows: “[I]f we cannot be sure that 

under the correct procedures the Agency would have reached the same conclusion, we cannot 

characterize the defect as harmless.” Id. at 1031. Manifestly, if EPA were to issue a final Subtitle 

C rule for CCRs based on the current proposal, great uncertainty would exist as to whether the 

result would have been the same if EPA had taken the numerous separate steps in the sequence 

specified in the statute. We believe one could never be sure that the result would have been the 

same, and that therefore Subtitle C rules that might be issued as a result of the current truncated 

process would certainly fail upon judicial review

Response: The Agency acknowledges and appreciates the comment. In that the Agency is 

pursuing a subtitle D regulatory strategy for CCR, the commenter’s comments dealing with 

subtitle C options are outside the scope of this final rulemaking. 

Comment Number: EPA-HQ-RCRA-2009-0640-06555-18

Organization1:Saint-Gobain Corporation / CertainTeed Corporation

Commenter1: Lauren P. Alterman

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CertainTeed objects to EPA’s jurisdictional basis for the Proposed CCR Rule or the 

promulgation of a Final Rule. The Solid Waste Disposal Act specifically directs EPA to 

undertake a detailed study and report on CCRs (42 U.S.C.§ 6982(n)), and “after public hearings 

and opportunity for comment, either determine to promulgate regulations foreach waste listed in 

subparagraph (n) of this paragraph or determine that such regulations are unwarranted.” Id. 

§6921(b)(3)(c). EPA undertook its study and determined that regulations were unwarranted in 

2000. 75 Fed. Reg. at35137. The statute does not provide for a subsequent reconsideration or 

revisitation of that determination. EPA lacks authority to change course and now, more than ten 

years later, determine that regulations are warranted absentnew legislation allowing it to do so

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06555-9

Organization1:Saint-Gobain Corporation / CertainTeed Corporation

Commenter1: Lauren P. Alterman
325

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. EPA IS REQUIRED TO FOLLOW THE MANDATORY STATUTORY PROCESS FOR 

REVISING ITS PRIOR BEVILL REGULATORY DETERMINATION AND ISSUING 

SUBTITLE C REGULATIONS FOR COAL COMBUSTION RESIDUES.

Before EPA may propose a rule to regulate coal combustion residuals (CCRs) under RCRA 

Subtitle C, it must (1) first conduct “a comprehensive study and submit a report on the adverse 

effects on human health and the environment, if any, of the disposal and utilization of” CCRs to 

Congress; (2) receive comments and hold public hearings on that report to Congress (RTC); and 

(3) then issue a regulatory determination as to whether such regulation is warranted based on the 

“information developed or accumulated pursuant to such study, public hearings, and comment.” 

42 U.S.C. §§ 6921(b)(3)(C), 6982(n); American Portland Cement Alliance v. EPA, 101 F.3d 

772, 777 (D.C. Cir. 1996). Only after completing these preliminary steps may EPA propose 

regulations under Subtitle C for CCRs. This procedural mandate is reflected in the plain text of 

RCRA, court decisions and EPA’s prior consistent interpretation and practice with respect to 

Bevill Amendment wastes. EPA has not satisfied any of these statutory prerequisites to support 

its proposal either to revise its prior regulatory determinations not to regulate CCRs under 

Subtitle C, or to promulgate new Subtitle C rules for CCRs. The procedures for issuing rules to 

regulate CCRs under Subtitle C are set forth in sections 3001(b)(3)(C) and 8002(n) of the 

SDWA, 42 U.S.C. § 6921(b)(3)(C), 6982(n). The first step is for EPA to conduct a “detailed and 

comprehensive study and submit a report on the adverse effects on human health and 

environment, if any, of the disposal and utilization of” CCRs. 42 U.S.C. § 6982(n) The section 

specifies that the study must include an analysis of eight different issues and requires that, when 

complete, the study and findings be submitted to two different Congressional committees. Id.; 65 

Fed. Reg. 32218 (describing procedural and substantive requirements for preparing and 

submitting RTCs). Second, no later than six months after submission of the study and after 

public hearings and opportunity for comment, EPA must “either determine to promulgate

regulations under [Subchapter C] or determine that such regulations are unwarranted.” 42 U.S.C. 

§ 6921(b)(3)(C). EPA’s determination “shall be based on information developed or accumulated 

pursuant to such study, public hearings, and comments.” Id. (emphasis added). Thereafter, if 

EPA determines that such regulations are warranted, it must initiate notice and comment 

rulemaking. See American Portland Cement Alliance, 101 F.3d at 777 (describing how RTC and 

regulatory determination precede rulemaking to establish Subtitle C regulations). Taken together, 

these provisions mandate that EPA (1) conduct a study of the adverse effects, if any, of the 

disposal of CCRs on human health and the environment; (2) submit the study to Congress; (3) 

determine whether to issue regulations for the disposal of CCRs; (4) base that determination on 

the study submitted to Congress and the information gathered in public hearings and comment; 

and (5) if EPA determines that Subtitle C regulations are warranted, engage in notice and 

comment rulemaking to promulgate the regulations. See In re: Leed Foundry, Inc., 13 E.A.D. 

100, RCRA (3008) Appeal No. 07-02 (Feb. 20, 2008) at 9-10 (describing preparation and 

submission of report to Congress as “statutory prerequisite” to issuance of regulatory 
326

determination). EPA has not complied with any of these requirements to support the proposed 

revision to its prior Bevill determination regarding the need to regulate the disposal of CCRs and 

its proposed Subtitle C regulations. EPA has prepared two previous RTCs and issued two 

regulatory determinations with respect to fossil fuel combustion wastes.[Footnote 1: Section 

3001(b)(3(A) exempts from regulation (until EPA complies with section 3001(b)(3)(C)) “fly ash 

waste,bottom ash waste, slag waste and flue gas emission control waste generated primarily from 

the combustion of coal or other fossil fuels.” CCRs are a subset of these wastes.] In 1988, EPA 

submitted its first RTC related to fossil fuel combustion waste, limited to an analysis of CCRs 

from electric utilities. See 58 Fed. Reg. 42466 (Aug. 9, 1993). This was followed by EPA’s 

regulatory determination that regulation of these wastes under Subtitle C was not warranted. Id. 

EPA issued a second RTC for all other fossil fuel combustion wastes in March 1999. See 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. EPA subsequently 

issued its regulatory determination regarding the wastes evaluated in this RTC. See 65 Fed. Reg. 

32214 (May 22, 2000). In this regulatory determination, EPA concluded, first, that all fossil fuel 

combustion wastes should remain exempt from regulation under Subtitle C, and, second, that it 

would develop Subtitle D regulations for CCRs disposed of in landfills or surface impoundments 

or used to fill surface or underground mines. Id. at 32215. EPA has not issued any such 

regulations and EPA has not indicated that any regulations were, or would be required for CCRs 

that were not landfilled or used to fill surface or underground mines. EPA simply never 

contemplated, nor thought it was necessary to regulate CCRs that are encapsulated in products, 

such as CertainTeed’s fiber cement. In support of its new proposal to regulate disposal of CCRs 

under Subtitle C, EPA properly recognizes that it must revise its two prior regulatory 

determinations. See 75 Fed. Reg. 35419. EPA, however, has not undertaken the required steps 

for a change. Most significantly, EPA has not prepared a new study under section 8002(n) 

regarding the impacts of disposal which includes an evaluation of the eight statutory criteria. 

Having failed to conduct that study, EPA has neither prepared nor submitted a RTC setting forth 

its findings. EPA also has failed to base its proposed revision on its earlier regulatory 

determinations, accepted comment, or held public hearings on the RTC. As such EPA has failed 

to comply with the procedural requirements of section 3001(b)(3)(C). Section 8002(n)’s 

requirement to conduct and submit a RTC, and the parallel requirement in section 3001(b)(3)(C) 

to base its regulatory determination on a RTC, are not a one time obligation that, once 

completed, need never comply with again. Rather, these requirements are continuing obligations 

that EPA must follow each time it desires to revise a regulatory determination. While section 

8002(n) calls for a RTC to be completed by October 1980, the inclusion of that deadline cannot 

reasonably be interpreted to mean that Congress only mandated that EPA conduct the study 

once. Rather, section 8002(n) must be read in conjunction with section 3001(b)(3)(C), which 

plainly states that EPA’s regulatory determination “shall be based on information developed or 

accumulated pursuant to such [RTC], public hearings, and comment.” (emphasis added) See also 

65 Fed. Reg. 32218-19 (describing statutory requirements for issuing regulatory determinations 

under section 3001(b)(3)(C)). The use of the term “shall” in this section clearly indicates that 

EPA has no discretion, but must base each regulatory determination on a RTC. The text of 

section 3001(b)(3)(A) supports this conclusion by exempting from regulation the Bevill wastes –

including fossil fuel combustion wastes - “until at least six months after the date of submission of 

the applicable study required to be conducted [under section 8002] and after promulgation of 

regulations in accordance with subparagraph (C).” 42 U.S.C. § 6921(b)(3)(A). In other words, 

any decision to regulate Bevill wastes under Subtitle C must be preceded by (1) the RTC, (2) the 
327

regulatory determination, (3) comments on the RTC, and (4) public hearings. EPA has not 

completed any of these required steps in support of its most recent proposal.

EPA also cannot claim that it has satisfied these requirements through the submission of its two 

prior RTCs regarding fossil fuel combustion wastes in 1988 and 1999. Those RTCs may have 

sufficed for EPA’s earlier regulatory determinations, but a new study must be conducted and a 

new report submitted to Congress each and every time EPA proposes to revise or modify its 

earlier regulatory determination. Indeed, EPA cannot credibly claim that its current proposal is 

supported by its earlier RTCs such that it is relieved from the obligation to conduct the necessary 

study, collect the required data and prepare a new RTC on which it must accept comment and 

hold public hearings. It is abundantly clear that EPA is not basing its proposed revision to the 

regulatory determination on the two prior RTCs (the latest of which is 11 years old). Rather, 

EPA is relying on the new data and information that has been obtained since its earlier 

determinations and presented in the proposal. See 75 Fed. Reg. 35149-59. As such, EPA has not 

complied with section 3001(b)(3)(C)’s requirement to base its regulatory determination on the 

RTC mandated by section 8002(n) (along with information obtained through public comment 

and hearings on that RTC). EPA’s prior statements and its consistent practice in issuing Bevill 

regulatory determinations confirm that the Agency has always interpreted the Bevill Amendment 

to mandate that it first conduct and submit a RTC, accept comments and hold public hearings on 

the RTC, and then base its regulatory determinations on that RTC. Indeed, each prior Bevill 

regulatory determination was preceded by these very steps, and was based upon and supported 

by a unique and specially prepared “detailed and comprehensive” RTC. For example, the two 

prior regulatory determinations for fossil fuel combustion residues were preceded by and based 

upon such RTCs. See 58 Fed. Reg. 42466 (Aug. 9, 1993) (regulatory determination for CCRs 

generated at electric utilities, preceded by 1988 Report to Congress); 65 Fed. Reg. 32214 (May 

22, 2000) (regulatory determination for wastes from combustion of fossil fuels, preceded by 

1999 Report to Congress); see also In re: Leed Foundry, Inc., 13 E.A.D. 100, RCRA (3008) 

Appeal No. 07-02 (Feb. 20, 2008) at 7 (describing history and basis of two prior fossil fuel 

combustion wastes regulatory determinations). Indeed, in the consent decree entered in Gearhart 

v. Reilly, C.A. No. 91-2435 (D.D.C. June 30, 2992), EPA specifically acknowledged that, before 

it could issue its regulatory determination for all fossil fuel combustion wastes it needed first to 

conduct and submit the required Report to Congress). The regulatory determinations for the other 

Bevill wastes were similarly preceded by and based upon a RTC. See 60 Fed. Reg. 7366 (Feb. 7, 

1995) (regulatory determination for cement kiln dust preceded by December 31, 1993 RTC); 53 

Fed. Reg. 25466 (July 6, 1988) (regulatory determination for crude oil and natural gas waste 

preceded by December 1987 RTC); 56 Fed. Reg. 27300 (June 13, 1991) (regulatory 

determination for 20 mineral processing wastes preceded by July 1990 RTC); 51 Fed. Reg. 

24496 (July 3, 1986) (regulatory determination for extraction and beneficiation waste preceded 

by December 1985 RTC). As this history demonstrates, EPA has always prepared and relied 

upon a RTC prior to issuing a regulatory decision as to a Bevill waste without first preparing and 

relying upon a RTC. This consistent practice demonstrates EPA’s understanding that the RTC is 

a mandatory prerequisite for any regulatory determination.

EPA’s recent proposal cannot suffice for the required RTC and associated process for issuing 

regulatory determinations for Bevill wastes. As EPA has stated: In the Bevill Amendment, 

Congress created a special process for the Agency to determine which wastes, if any, should 
328

retain the temporary statutory exclusions from RCRA Subtitle C. This process is similar to the 

rulemaking process, although it entails additional steps. In 1980, Congress required EPA to study 

certain wastes, . . . conduct a detailed and comprehensive study and submit it to Congress, 

conduct public hearings and accept public comments, and finalize its decision in a Report to 

Congress. See Complainant’s Brief In Support of Its Notice of Appeal to the Environmental 

Appeals Board in In re Leed Foundry, Inc., RCRA (3008) Appeal No. 07-02 (EAB) (Jul. 2, 

2007) (available at 

http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filings%20By%20Appeal%20Number/D64 

D0A837C2CC2958525730C0075BDCA?OpenDocument). In this definitive statement, EPA thus 

correctly recognized that the process for adopting a regulatory determination differs from and 

entails additional Congressionally-mandated steps compared to the rulemaking process under 

RCRA. See also American Portland Cement Alliance, 101 F.3d at 777 (distinguishing between 

process for adopting a Bevill regulatory determination and regulations implementing and 

following such a determination). Congress had a good reason for creating this distinction and the 

additional procedures for issuing regulatory determinations – namely that the potential economic 

impacts of regulating high volume, low toxicity wastes like CCRs warrant extra study and 

careful consideration. In light of these concerns, EPA cannot simply ignore these requirements in 

its rush to modify its earlier determinations and promulgate Subtitle C regulations for CCRs. 

EPA’s failure to follow the required process renders the proposed revision to its earlier 

regulatory determinations and proposed Subtitle C regulations arbitrary, capricious and contrary 

to law.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06726-4

Organization1:The North American Coal Corporation

Commenter1: Joseph D. Friedlander

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

EPA's regulatory process is contrary to the intent of Congress for a one-time finding under the 

Bevill Amendment whether CCRs should be designated as hazardous wastes. Congress did not 

intend for an ongoing 30-year study of coal ash. An exhaustive and detailed study was 

completed, findings reported to Congress in 2000, and any changes to these findings must 

require a revisit with Congress before creating new regulations, as described below. 

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.c. §§ 6921-6931, generally 

established a "cradle to grave" management scheme governing the generation, transportation, 
329

treatment, storage and disposal of the hazardous wastes that would be subject to this stringent 

RCRA Subtitle C program. 

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA 

Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil 

fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. 

Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer 

regulatory requirements because they were generated in "very large volumes," "posed relatively 

low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous 

waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final 

hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final 

rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as 

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations. 

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, 

onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations 

and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 

6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill 

Amendment established a special process, which EPA was required to follow before CCRs and 

the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See 

also, EDF v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) ("Indeed, our reading of the statute and 

legislative history strongly suggests that Congress designed the Bevill Amendment to break with 

the previous approach to regulation of hazardous industrial wastes."). 

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle 

C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 

6921(b)(3)(A). Second, Congress directed EPA to conduct a "detailed and comprehensive study" 

on the adverse effects on human health and the environment of CCRs and other special wastes. 

42 U.S.C. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how 

to determine if wastes were hazardous and subject to Subtitle C under the regulations that were 

to become effective on November 19, 1980, Congress expressly directed that the Bevill study 

include an analysis of: 

1. the source and volumes of CCRs generated per year; 

2. present disposal and utilization practices; 

3. potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials; 

4. documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proved; 

5. alternatives to current disposal methods; 

6. the costs of such alternatives; 

7. the impact of those alternatives on the use of coal and other material resources; and 

8. the current and potential utilization of such materials. 

Third, Congress directed that EPA publish a report on such study, which was to include 
330

"appropriate findings," not later than 24 months after October 21, 1980. Id The Bevill Report 

was to be submitted to the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives. Id

Fourth, the Bevill Amendment further stipulated that within six months after the Report to 

Congress, EPA, after public hearings and the opportunity for comment, had to determine whether 

to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were 

unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were 

warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle 

C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 

1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on 

the Report to Congress] will be a determination of whether regulation is warranted in the future, 

not regulations themselves."). 

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980 for 

publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No. 

91-2435 (D.D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel 

combustion wastes into two categories, and agreed to follow the Bevill process separately for the 

two categories. EPA had actually published its First Report to Congress on fossil fuel 

combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 

1988). On August 9,1993, EPA issued a regulatory determination that regulation of four large 

volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, 

and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 

Fed. Reg. 42,466. 

In the second phase of the Bevill utility industry process, EPA addressed issues of 

comanagement, ash derived from co-burning of coal from non-hazardous solid waste, ash 

derived from clean coal combustion, and combustion residues from burning oil and natural gas. 

EPA submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 

(April 28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. 

Reg. 32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination 

that hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes 

was "not warranted." 65 Fed. Reg. at 32,215. 

An analysis of the Bevill Amendment reveals that the above-described special Bevill process 

established by Congress provided for a one-time evaluation of CCRs and the other special 

wastes. First, the Bevill Amendment by its terms calls for a "study" and a "report." 42 U.S.C. §§ 

6982(n). The use of the singular, as well as the statutory context, means that Congress 

deliberately established a one-time study and one-time Report to Congress obligation. Similarly, 

Congress called for a one-time regulatory determination when it stated that "not later than six 

months after the date of submission of the applicable study" EPA should "either determine to 

promulgate regulations ... or determine that such regulations are unwarranted." 42 U.S.C. § 

6921(b)(3)(C).

Second, Congress made it clear it was establishing a one-time study, repOli and regulatory 
331

determination obligation when it required that the report and study be completed by a date 

certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a 

temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach 

consistent with a one-time study, report and regulatory determination. 42 U.S.C. § 

6921(b)(3)(A). 

Moreover, if Congress had intended to extend the Bevill process thirty years beyond the 1980 

date Congress established for completion of the Bevill study and Report, Congress would have 

done so explicitly. That Congress did not do so further confirms that it intended that the Bevill 

process consist of a one-time report, study and regulatory determination for CCRs. Thus, with 

the issuance of the 2000 Regulatory Determination, the Bevill process for fossil fuel combustion 

wastes, including CCRs, was completed. For all the above reasons, the Bevill Amendment 

established a one-time study, report and regulatory determination for CCRs. Direction to EPA 

was made clear many years ago: conduct a study, determine whether CCR's should be regulated 

as a hazardous waste, report to Congress and then act accordingly. EPA completed their assigned 

work and reported to Congress that CCRs should not be regulated as Subtitle C hazardous 

wastes. EPA cannot now decide on its own to change its mind, contrary to Congressional intent 

and without any Congressional reporting, consultation or direction, and simply promulgate new 

hazardous waste regulations

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06827-1

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.2

Comment Excerpt Text:

1. The Proposed Rule Arbitrarily Regulates the Electric Power Sector While Excluding Other 

Industries That Generate and Dispose of CCRs

Under the Subtitle C option, CCRs that are generated and disposed in landfills or surface 

impoundments by electric utilities and independent power producers would be regulated as a 

listed hazardous waste (i.e. so-called "SOOI" waste). As such, CCRs and the landfills or surface 

impoundments in which they are disposed would be subject to hazardous waste regulation. 

Conversely, CCRs that are generated and disposed by other industry sectors would not be subj 

ect to regulation under the proposed rule pursuant to 40 CFR 261.4(b)(4)(ii) and 40 CFR 

261.50(b)(4).

Under the Subtitle D option, CCRs that are generated and disposed in landfills or surface 
332

impoundments by electric utilities and independent power producers would be regulated as a 

non-hazardous solid waste. As such, any landfill or surface impoundment in which CCRs are 

disposed would be subj ect to certain minimum national design and operational standards for 

those types of disposal units. Conversely, it appears that CCRs that are generated and disposed 

by industries outside the electric power sector would not be subject to regulation under the 

proposed rule, although there is no explicit language to that effect in the proposed rule itself at 40 

CFR 257.40(a). Instead, OG&E is relying on the language in the summary section of the 

proposed rule in which the Agency states that it is proposing to regulate CCRs to address the 

risks from the disposal of CCRs generated from the combustion of coal at electric utilities and 

independent power producers.

Unlike earlier rulemaking efforts under Subtitle C in which the Agency promulgated rules to 

regulate certain listed hazardous wastes from non-specific sources without regard to the 

industries that generated them, in these proposed rules, the Agency has somehow determined that 

CCRs generated by electric utilities and independent power producers pose a greater threat to 

human health and the environment than those generated by other industries. This is a radical 

departure from the Agency's historical approach in regulating listed hazardous wastes in that, 

until now, it did not matter which industry generated the wastes; if it met the listing criteria, the 

wastes were regulated. Similarly, it did not matter which industry disposed of non-hazardous 

solid wastes in landfills; if such wastes were disposed of in this manner, the landfills were 

regulated pursuant to 40 CFR Part 257, regardless of who owned or operated them.

Thus, it appears that the Agency has elected not to include other industries that utilize coal as a 

fuel source from which CCRs are generated and disposed. If CCRs pose a threat to human health 

and environment as the Agency now asserts, it shouldn't matter which industry generates and 

disposes of them; if any industries are subject to the proposed rule, then all industries that 

generate and dispose of CCRs should be subject to the proposed rule.

Nowhere in the proposed rule does the Agency provide a technical explanation why CCRs 

generated by the electric power sector are different in their physical or chemical composition 

than those that are generated by other industry sectors such that they warrant regulation. The 

Agency likewise does not provide any technical explanation why landfills or surface 

impoundments owned and operated by the electric power sector are designed, constructed and 

operated differently than those of other industry sectors such that they warrant regulation.

In the absence of any such explanation, the proposed rule is arbitrary and capricious in that its 

scope is narrowly written to regulate CCRs generated and disposed by the electric power sector 

while excluding other industry sectors that also generate and dispose of CCRs. In that regard, the 

Agency should amend the proposed rule by removing any exclusion that unfairly favors other 

industries that generate and dispose of CCRs, thereby subjecting all industries that generate and 

dispose of CCRs to any final rule that comes from this rulemaking effort.

Response: The Agency acknowledges and appreciates the comment. EPA is promulgating a 

subtitle D rule for the disposal of CCR in surface impoundments and landfills and as such, 

comments pertaining to the subtitle C option for the management of CCR is outside the scope 

of this rulemaking.

Comment Number: EPA-HQ-RCRA-2009-0640-06835-1

Organization1:U.S. Senate
333

Commenter1: Kyle D. Miller on behalf of James M. Inhofe

Commenter Type: Federal Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

On July 29, 20 I0, I joined a number of my Senate colleagues to oppose, for a variety of reasons, 

the regulation of CCRs under RCRA Subtitle C. I write to raise a more fundamental concern 

with the proposed Subtitle C option. The Subtitle C option assumes that EPA can summarily 

reverse its final 2000 Regulatory Determination that CCRs do not warrant hazardous waste 

regulation, an action that I do not believe EPA has the authority to undertake. 

Before making any final regulatory determination for CCRs, Congress, through the l3evill 

Amendment, directed EPA to first study CCRs pursuant to the eight statutory study factors and 

then "publish a report on such study, which shall include appropriate findings." [Footnote 1: 

RCRA Section 8002(n).] Such "study and findings shall be submitted to the Committee on 

Environment and Public Works or the United States Senate and the Committee on Energy and 

Commerce of the United States House of Represel1tatives..· [Footnote 2: Id.] Following 

submission of the report to the appropriate Congressional Committees. the statute requires that 

EPA conduct public hearings and provide an opportunity for comment on the Report to 

Congress, and then either determine to promulgate regulations" for CCRs under RCRA Subtitle 

C or determine that such regulations are unwarranted. [Footnote 3: RCRA Section § 

3001(bX3XC).] Following this process, EPA is directed to publish its regulatory determination, 

"which shall be based on information developed or accumulated pursuant to such study, public 

hearings and comment in the Federal Register accompanied by an explanation and justification 

of the reasons for it. [Footnote 4: Id.] 

EPA completed this statutory decision-making process for CCRs in 2000 when it issued its final 

Bevill Regulatory Determination concluding, based on its 1999 Report to Congress and public 

hearings and comments on that report, that CCRs do not warrant regulation under RCRA Subtitle 

C. The statute does not authorize EPA to decide independently to revisit this decision and reverse 

its final CCR Regulatory Determination under a process of its own creation. 

EPA's implicit assumption that it can proceed with the Subtitle C option, that it could issue a new 

regulatory determination for CCRs without first providing Congress with the statutorily required 

report on its recommendation, is extremely troubling. The statute is clear regarding such action: 

prior to making a final regulatory determination for CCRs, EPA is required to provide both the 

Senate Environment and Public Works Committee and the House Energy and Commerce 

Committee a report detailing its initial regulatory recommendation. The statute also makes clear 

that any final regulatory determination must be based on such Report to Congress. This process 

is critical to ensure that Congress retains its oversight role of EPA's deliberative process under 

which it determines whether and how to regulate CCRs. EPA has not prepared a Report to 

Congress informing the relevant Congressional Committees of jurisdiction that the Agency 

intends to reverse course and regulate CCRs under RCRA Subtitle C. 
334

This failure is especially troubling given that both an earlier 1988 Report to Congress and its 

second 1999 Report to Congress made clear that CCRs do not warrant regulation under RCRA's 

Subtitle C hazardous waste program and that EPA did not intend to pursue this regulatory path. 

Now, more than ten years after determining that CCRs do not warrant regulation under Subtitle 

C, EPA is proposing to reverse that decision without explaining its reasoning to Congress as 

required by the statute. This failure deprives Congress of its statutorily-prescribed oversight role 

to be fully informed of any such recommendation so that it can evaluate and respond, as 

appropriate, to the Agency's recommended course of action before EPA makes a final regulatory 

determination for CCRs. Such an approach is inconsistent with the statute which requires that 

any final regulatory determination be based on the Report to Congress.

As the Ranking Member of the Senate Environment and Public Works Committee, I am deeply 

troubled by both EPA's assumption that it can summarily reverse its final Regulatory 

Determination for CCRs and with its apparent conclusion that it can do so without adhering to 

the statutorily prescribed procedures for making such a decision, including the publication of a 

Report to Congress informing the relevant Congressional committees of jurisdiction of the 

Agency's initial recommendation. I therefore believe EPA cannot pursue the Subtitle C option 

for CCRs set forth in the recent proposal

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. Moreover, since the Agency is finalizing a subtitle D rule 

for managing the disposal of CCR in surface impoundments and landfills, any comments on the 

proposed regulation of CCR under subtitle C of RCRA are outside the scope of this rulemaking. 

Comment Number: EPA-HQ-RCRA-2009-0640-06857-9

Organization1:CertainTeed Gypsum, Inc.

Commenter1: Lauren P. Alterman

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. EPA IS REQUIRED TO FOLLOW THE STATUTORY PROCESS FOR REVISING ITS 

PRIOR BEVILL REGULATORY DETERMINATION AND ISSUING SUBTITLE C 

REGULATIONS FOR COAL COMBUSTION RESIDUES. 

Before EPA may propose a rule to regulate coal combustion residuals (CCRs) under RCRA 

Subtitle C, it must (1) first conduct “a comprehensive study and submit a report on the adverse 

effects on human health and the environment, if any of the disposal and utilization of” CCRs to 

Congress; (2) receive comments and hold public hearings on that report to Congress (RTC); and 

(3) then issue a regulatory determination as to whether such regulation is warranted based on the 
335

“information developed or accumulated pursuant to such study, public hearings, and comment.” 

42 U.S.C. §§ 6921(b)(3)(C), 6982(n); American Portland Cement Alliance v. EPA, 101 F.3d 

772, 777 (D.C. Cir. 1996). Only after completing these preliminary steps may EPA propose 

regulations under Subtitle C for CCRs. This procedural mandate is reflected in the plain text of 

RCRA, court decisions and EPA’s prior consistent interpretation and practice with respect to 

Bevill Amendment wastes. EPA has not satisfied any of these statutory prerequisites to support

its proposal both to revise its prior regulatory determinations not to regulate CCRs under Subtitle 

C and to promulgate new Subtitle C rules for CCRs. 

The procedures for issuing rules to regulate CCRs under Subtitle C are set forth in sections 

3001(b)(3)(C) and 8002(n) of the SDWA, 42 U.S.C. § 6921(b)(3)(C), 6982(n). The first step is 

for EPA to conduct a “detailed and comprehensive study and submit a report on the adverse 

effects on human health and environment, if any, of the disposal and utilization of” CCRs. 42 

U.S.C. § 6982(n). The section specifies that the study must include an analysis of eight different 

issues and requires that, when complete, the study and findings be submitted to two different 

Congressional committees. Id.; 65 Fed. Reg. 32218 (describing procedural and substantive 

requirements for preparing and submitting RTCs). Second, no later than six months after 

submission of the study and after public hearings and opportunity for comment, EPA must 

“either determine to promulgate regulations under [Subchapter C] or determine that such 

regulations are unwarranted.” 42 U.S.C. § 6921(b)(3)(C). EPA’s determination “shall be based 

on information developed or accumulated pursuant to such study, public hearings, and 

comments.” Id. (emphasis added). Thereafter, if EPA determines that such regulations are 

warranted, it must initiate notice and comment rulemaking. See American Portland Cement 

Alliance, 101 F.3d at 777 (describing how RTC and regulatory determination precede 

rulemaking to establish Subtitle C regulations). Taken together, these provisions mandate that 

EPA (1) conduct a study of the adverse effects, if any, of the disposal of CCRs on human health 

and the environment; (2) submit the study to Congress; (3) determine whether to issue 

regulations for the disposal of CCRs; (4) base that determination on the study submitted to 

Congress and the information gathered in public hearings and comment; and (5) if EPA 

determines that Subtitle C regulations are warranted, engage in notice and comment rulemaking 

to promulgate the regulations. See In re: Leed Foundry, Inc., 13 E.A.D. 100, RCRA (3008) 

Appeal No. 07-02 (Feb. 20, 2008) at 9-10 (describing preparation and submission of report to 

Congress as “statutory prerequisite” to issuance of regulatory determination). EPA has not 

complied with any of these requirements to support the proposed revision to its prior Bevill 

determination regarding the need to regulate the disposal of CCRs and its proposed Subtitle C 

regulations. 

EPA has prepared two previous RTCs and issued two regulatory determinations with respect to 

fossil fuel combustion wastes. [Footnote 3: Section 3001(b)(3(A) exempts from regulation (until 

EPA complies with section 3001(b)(3)(C)) “fly ash waste, bottom ash waste, slag waste and flue 

gas emission control waste generated primarily from the combustion of coal or other fossil 

fuels.” These wastes are subsets of CCRs.] In 1988, EPA submitted its first RTC related to fossil 

fuel combustion waste, limited to an analysis of CCRs from electric utilities. See 58 Fed. Reg. 

42466 (Aug. 9, 1993). This was followed by EPA’s regulatory determination that regulation of 

these wastes under Subtitle C was not warranted. Id. EPA issued a second RTC for all other 

fossil fuel combustion wastes in March 1999. See 
336

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/volume_1.pdf. EPA subsequently 

issued its regulatory determination regarding the wastes evaluated in this RTC. See 65 Fed. Reg. 

32214 (May 22, 2000). In this regulatory determination, EPA concluded that all fossil fuel 

combustion wastes should remain exempt from regulation under Subtitle C; and, that it would 

develop Subtitle D regulations for CCRs disposed of in landfills or surface impoundments or 

used to fill surface or underground mines. Id. at 32215. EPA has not issued any such regulations 

nor indicated that any regulations were, or would be required, for CCRs that were not landfilled 

or used to fill surface or underground mines. 

In support of its new proposal to regulate disposal of CCRs under Subtitle C, EPA properly 

recognizes that it must revise its two prior regulatory determinations. See 75 Fed. Reg. 35419. 

However, EPA has not undertaken the necessary steps to support such a change. Most 

significantly, EPA has not prepared a new study under section 8002(n) regarding the impacts of 

disposal, which includes an evaluation of the eight statutory criteria. Having failed to conduct 

that study, EPA has neither prepared nor submitted a RTC setting out its findings. EPA also has 

not based its proposed revision to its earlier regulatory determinations, accepted comment, or 

held public hearings on such a RTC. In all these respects, EPA has failed to comply with the 

procedural mandate of section 3001(b)(3)(C). 

Section 8002(n)’s requirement to conduct and submit a RTC, and the parallel requirement in 

section 3001(b)(3)(C) to base its regulatory determination on a RTC, are not a one-time 

obligation that, once completed, need never be complied with again. Rather, these requirements 

are continuing obligations that EPA must follow each time it desires to revise a regulatory 

determination. While section 8002(n) calls for a RTC to be completed by October 1980, the 

inclusion of that deadline cannot reasonably be interpreted to mean that Congress only mandated 

that EPA conduct the study once. Rather, section 8002(n) must be read in conjunction with 

section 3001(b)(3)(C), which plainly states that EPA’s regulatory determination “shall be based 

on information developed or accumulated pursuant to such [RTC], public hearings, and 

comment.” See also 65 Fed. Reg. 32218-19 (describing statutory requirements for issuing 

regulatory determinations under section 3001(b)(3)(C)). The use of the term “shall” in this 

section clearly indicates that EPA has no discretion, but must base each regulatory determination 

on a RTC. The text of section 3001(b)(3)(A) supports this conclusion by exempting from 

regulation the Bevill wastes – including fossil fuel combustion wastes – “until at least six months 

after the date of submission of the applicable study required to be conducted [under section 

8002] and after promulgation of regulations in accordance with subparagraph (C).” 42 U.S.C. § 

6921(b)(3)(A). In other words, any decision to regulate Bevill wastes under Subtitle C must be 

preceded by (1) the RTC, (2) the regulatory determination, (3) comments on the RTC, and (4) 

public hearings. EPA has not yet completed any of these required steps in support of its most 

recent proposal to regulate CCRs. 

EPA also cannot claim that it has satisfied these requirements by referring to its two prior RTCs 

regarding fossil fuel combustion wastes in 1988 and 1999. Those RTCs may have sufficed for 

EPA’s earlier regulatory determinations, but a new study must be conducted and a new report 

submitted to Congress each and every time EPA proposes to revise or modify an earlier 

regulatory determination. Indeed, EPA cannot credibly claim that its current proposal is 

supported by its earlier RTCs such that it is relieved from the obligation to conduct the necessary 
337

study, collect the required data, and prepare a new RTC on which it must accept comment and 

hold public hearings. It is abundantly clear that EPA is not basing its proposed revision to the 

regulatory determination on the two prior RTCs (the latest of which is 11 years old). Nor could it 

because the prior RTCs, and in fact EPA conduct, supports an exemption for CCRs. Rather, EPA 

is relying on the new data and information that has been obtained since its earlier determinations 

and presented in the new proposal to regulate CCRs. See 75 Fed. Reg. 35149-59. As such, EPA 

has not complied with section 3001(b)(3)(C)’s requirement to base its regulatory determination 

on the RTC mandated by section 8002(n) (along with information obtained through public 

comment and hearings on that RTC). 

EPA’s prior statements and its consistent practice in issuing Bevill regulatory determinations 

confirm that the Agency has always interpreted the Bevill Amendment to mandate that it first 

conduct and submit a RTC, accept comments and hold public hearings on the RTC, and then 

base its regulatory determinations on that RTC. Indeed, each prior Bevill regulatory 

determination was preceded by these very steps, and was based upon and supported by a unique 

and specially prepared “detailed and comprehensive” RTC. For example, the two prior 

regulatory determinations for fossil fuel combustion residues were preceded by and based upon 

such RTCs. See 58 Fed. Reg. 42466 (Aug. 9, 1993) (regulatory determination for CCRs 

generated at electric utilities, preceded by 1988 Report to Congress); 65 Fed. Reg. 32214 (May 

22, 2000) (regulatory determination for wastes from combustion of fossil fuels, preceded by 

1999 Report to Congress); see also In re: Leed Foundry, Inc., 13 E.A.D. 100, RCRA (3008) 

Appeal No. 07-02 (Feb. 20, 2008) at 7 (describing history and basis of two prior fossil fuel 

combustion wastes regulatory determinations). Indeed, in the consent decree entered in Gearhart 

v. Reilly, C.A. No. 91-2435 (D.D.C. June 30, 2992), EPA specifically acknowledged that before 

it could issue its regulatory determination for all fossil fuel combustion wastes it first needed to 

conduct and submit the required Report to Congress). 

The regulatory determinations for the other Bevill wastes were similarly preceded by, and based 

upon a RTC. See 60 Fed. Reg. 7366 (Feb. 7, 1995) (regulatory determination for cement kiln 

dust preceded by December 31, 1993 RTC); 53 Fed. Reg. 25466 (July 6, 1988) (regulatory 

determination for crude oil and natural gas waste preceded by December 1987 RTC); 56 Fed. 

Reg. 27300 (June 13, 1991) (regulatory determination for 20 mineral processing wastes preceded 

by July 1990 RTC); 51 Fed. Reg. 24496 (July 3, 1986) (regulatory determination for extraction 

and beneficiation waste preceded by December 1985 RTC). As this history demonstrates, EPA 

has always prepared and relied upon a RTC prior to issuing a regulatory decision as to a Bevill 

waste. This consistent practice demonstrates EPA’s understanding that the RTC is a mandatory 

prerequisite for any regulatory determination. 

EPA’s proposal cannot suffice for the required RTC and associated process for issuing 

regulatory determinations for Bevill wastes. As EPA has stated: 

In the Bevill Amendment, Congress created a special process for the Agency to determine which 

wastes, if any, should retain the temporary statutory exclusions from RCRA Subtitle C. This 

process is similar to the rulemaking process, although it entails additional steps. In 1980, 

Congress required EPA to study certain wastes, . . . conduct a detailed and comprehensive study 

and submit it to Congress, conduct public hearings and accept public comments, and finalize its 
338

decision in a Report to Congress. 

See Complainant’s Brief In Support of Its Notice of Appeal to the Environmental Appeals Board 

in In re Leed Foundry, Inc., RCRA (3008) Appeal No. 07-02 (EAB) (Jul. 2, 2007) (available at 

http://yosemite.epa.gov/OA/EAB_WEB_Docket.nsf/Filings%20By%20Appeal%20Number/D64 

D0A837C2CC2958525730C0075BDCA?OpenDocument). In this definitive statement, EPA 

correctly recognized that the process for adopting a regulatory determination differs from, and 

entails additional Congressionally-mandated steps compared to the rulemaking process under 

RCRA. See also American Portland Cement Alliance, 101 F.3d at 777 (distinguishing between 

process for adopting a Bevill regulatory determination and regulations implementing and 

following such a determination). Congress had a good reason for creating this distinction and the 

additional procedures for issuing regulatory determinations – namely that the potential economic 

impacts of regulating high volume, low toxicity wastes like CCRs warrant extra study and 

careful consideration. In light of these concerns, EPA cannot simply ignore these requirements in 

its rush to modify its earlier determinations and promulgate Subtitle C regulations for CCRs. 

In short, if EPA desires to issue regulations under Subtitle C for CCRs, it first must follow the 

statutorily mandated process for issuing regulatory determinations. It must start by conducting 

the study required by section 8002(n), submitting the RTC, accepting comment and holding 

public hearings on the RTC. Only then may EPA propose to modify its regulatory determination, 

after which it may undertake the process, if any, to promulgate Subtitle C regulations. EPA’s 

failure to follow this process and attempt to revise its earlier regulatory determinations and 

proposed Subtitle C regulations is arbitrary, capricious and contrary to law.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-19

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. EPA Completed The Bevill Regulatory Process For CCRs In 2000 And The Statute Does Not 

Authorize EPA To Reverse That Decision

EPA has completed the Bevill process pursuant to a judicially imposed deadline and determined, 

in accordance with the congressionally-mandated decision-making process, that CCRs do not

warrant regulation under Subtitle C. The statutory decision-making process is complete and 

RCRA does not authorize EPA to decide to take another bite of the apple and reverse its final 
339

CCR Regulatory Determinations on a time schedule and process of its own choosing.

Congress established a detailed process by which EPA could determine whether and how to 

regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining 

that CCRs do not warrant regulation under RCRA Subtitle C and concluding instead that CCRs 

warrant regulation under RCRA's Subtitle D non-hazardous waste program. The statute does not 

contemplate, let alone authorize, EPA undertaking another round of the Bevill decision making 

for CCRs. If it did, the statutory process and its associated deadlines for reaching and rendering a 

final Regulatory Determination would have no meaning and EPA could continually change its 

mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.

EPA itself readily acknowledges that the Bevill Amendment does not include a process for 

Agency reversal of the CCR final Regulatory Determinations. In response to an inquiry from 

Representative Markey following the Kingston ash release regarding whether and how EPA 

could reverse its final CCR Regulatory Determinations for CCRs, EPA’s then-Acting Associate 

Administrator readily acknowledged that "RCRA does not specifically spell out the process by 

which we [would] revise the Regulatory Determination." [Footnote 2: See Jan. 30, 2009 letter 

from Joyce K. Frank, EPA Acting Associate Administrator, to Rep. Markey, Chair, House 

Committee on Energy and Commerce, at 3. ] As the D.C. Circuit has held, "Congress's failure to 

grant an agency a given power is not an ambiguity as to whether that power has, in fact, been 

granted. On the contrary, and as this Court persistently has recognized, a statutory silence on the 

granting of a power is a denial of that power to the agency." American Bus Ass'n v. Slater, 231 

F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J., concurring) (emphasis added). Here, even EPA 

acknowledges that the statute does not speak to whether and how EPA can revise its final CCR 

Regulatory Determinations. The Agency nonetheless assumes that it possesses such power. It 

does not.

It is a fundamental principle of administrative law that an agency’s authority to act must come 

directly from Congress and absent such authority an agency may not act. See U.S. Telecom Ass'n 

v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) ("[S]tatutory 'silence' simply leaves th[e] lack of 

authority untouched. In other words, the failure of Congress to use 'Thou Shalt Not' language 

doesn't create a statutory ambiguity of the sort that triggers Chevron deference.);" Ethyl Corp. v. 

EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) (“We refuse ... to presume a delegation of power 

merely because Congress has not expressly withheld such power.”); Ry. Labor Executives' Ass'n 

v. Nat'l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (Were courts to presume a 

delegation of power absent an express withholding of such power, agencies would enjoy 

virtually limitless authority to modify the program, a result plainly out of keeping with Chevron

and quite likely with the Constitution as well.) (emphasis in original) [Footnote 3: See 

alsoAdams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) ("A 'gap' is not created in a statutory 

scheme merely because a statute does not restate the truism that States may not preempt federal 

law."); Aid Ass'n for Lutherans v. USPS, 321 F.3d 1166, 1174-75 (D.C. Cir. 2003) ("[T]he Postal 

Service's position seems to be that the disputed regulations are permissible because the statute 

does not expressly foreclose the construction advanced by the agency. We reject this position as 

entirely untenable under well-established case law"). ]. 

The Bevill Amendment is, of course, completely silent on EPA's authority to redo or reverse a 

final regulatory determination that the Agency has already properly reached pursuant to the 

Amendment’s statutorily prescribed procedures and deadlines [Footnote 4: Though, as noted 

above, EPA missed the statutory deadlines set forth in the statute for reaching a final regulatory 

determination for CCRs; a citizen suit over this missed statutory deadline resulted in EPA being 
340

subject to court-ordered deadlines for issuing both the 1993 and 2000 CCR final regulatory 

determinations. See infra at __. ]. If Congress had wanted to give EPA this authority, it would 

have done so explicitly. As the above federal decisions make clear, such silence means that EPA 

does not have the authority to undertake, through a process and timing of its own choosing, a 

second regulatory determination. 

The statute contemplates only a one-time decision, directing EPA to "determine," not later than 

six months after the statutorily-required reports to Congress on CCRs, whether Subtitle C 

regulation for CCRs is warranted. See RCRA § 3001(b)(3)(C). That determination, which was to 

be based on "information developed or accumulated pursuant to such study, public hearings, and 

comment," was to be published in the Federal Register and "accompanied by an explanation and 

justification of the reasons for it." Id. EPA completed this statutory process for CCRs over ten 

years ago, concluding for a multitude of reasons that CCRs do not warrant regulation under 

RCRA Subtitle C. The statute simply does not empower EPA to revisit its final decision and 

render a new "determination."

If EPA wishes to once more undertake the statutorily-presented process for reaching a final 

Regulatory Determination for CCRs, it must obtain this authority from Congress. If Congress 

were to grant EPA such authority, it would be reasonable to expect that Congress would establish 

new statutory deadlines and perhaps new and different statutory study factors for EPA to 

evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority 

from Congress, the Agency is not empowered to alter its final 1993 and 2000 regulatory 

determinations for CCRs. Therefore, EPA cannot pursue the Subtitle C option [Footnote 5: 

While “[a]n agency can normally change its position and reverse a decision ... Congress, 

however, undoubtedly can limit an agency’s discretion to reverse itself[.]” New Jersey v. EPA, 

517 F.3d 574, 582-83 (D.C. Cir. 2008). Here, Congress has limited EPA’s ability to reverse its 

final Bevill Regulatory Determination by specifying prescribed procedures and timeframes for 

completing the determination and not authorizing the Agency to revisit that final determination 

and issuing a new determination.].

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-20

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:
341

C. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second 

Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment's Prescribed 

Process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory 

Determination for CCRs, the Agency would have to adhere to the statutorily-prescribed 

procedures that Congress demanded EPA to follow in determining whether and how to regulate 

CCRs. Even EPA has recognized this; in responding to Representative Markey’s inquiry to EPA 

about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency 

stated that it would be “advisable [for EPA] to go through the same process we followed” in 

issuing the 1993 and 2000 final Regulatory Determinations [Footnote 6: See Jan. 30, 2009 letter 

from EPA Acting Associate Administrator Joyce Frank to Rep. Edward Markey, Chair of the 

House Energy and Commerce Subcommittee on Energy and Environment.]. Despite what it 

advised Congress, EPA has strayed beyond the plain language of the statute by proposing to 

reverse its final Regulatory Determinations for CCRs without following the statutorily-required

process it followed for issuing those determinations in the first instance.

As explained above, the Bevill Amendment requires that, before making any final regulatory 

determination for CCRs, EPA first must study CCRs pursuant to the eight statutory study factors 

and then “publish a report on such study, which shall include appropriate findings.” RCRA 

section 8002(n). The statute then directs that such “study and findings shall be submitted to the 

Committee on Environment and Public Works of the United States Senate and the Committee on 

Energy and Commerce of the United States House of Representatives.” Id. Following submission 

of the report to the appropriate Congressional Committees, the statute directs EPA to conduct 

“public hearings and opportunity for comment [on the report to Congress], and either determine 

to promulgate regulations” regulating CCRs under RCRA’s Subtitle C hazardous waste 

regulations “or determine that such regulations are unwarranted.” RCRA § 3001(b)(3)(C). 

Following this process, EPA was directed to publish its regulatory determination, “which shall 

be based on information developed or accumulated pursuant to such study, public hearings and 

comment in the Federal Register accompanied by an explanation and justification of the reasons 

for it.” Id.

Thus, prior to making any final regulatory determination for CCRs, the statute directs EPA to 

fully inform Congress of the Agency’s initial recommendation as set forth in the Report to 

Congress. This is not a mere procedural formality. As Representative Bevill emphasized when 

introducing his amendment, it was especially critical that EPA not make the final regulatory 

determination in isolation, but that Congress and relevant federal agencies be involved in the 

decision-making process. 126 Cong. Rec. at 3362. The multi-step decision-making process set 

forth in the Bevill Amendment, including the submission of a Report to Congress, was 

specifically designed to enable Congress and other federal agencies to “evaluate the basis of the 

Agency’s decision, and to address the question of what degree of regulation, if any, is 

appropriate” and ultimately to ensure that the final Regulatory Determination was consistent with 

the nation’s “commitment to develop a coherent and consistent policy toward the use of our coal 

and other energy resources.” Id.

Among other omissions, EPA has not prepared a Report to Congress informing the relevant 

congressional committees of jurisdiction which provide Congressional oversight in EPA’s Bevill 

Regulatory Determination process that the Agency intends to reverse course and regulate CCRs 

under RCRA Subtitle C. This is especially egregious given that the Reports to Congress that 

EPA did provide to Congress made clear that CCRs do not warrant regulation under RCRA’s 
342

Subtitle C hazardous waste program and that, therefore, EPA would not pursue this regulatory 

path. Now, more than ten years later, EPA is proposing to reverse that decision and issue a new 

Regulatory Determination for CCRs without explaining its reasoning to Congress as required by 

the statute, thereby cutting Congress out of the deliberative oversight role it reserved for itself 

prior to issuance of any final Regulatory Determination by EPA [Footnote 7: In fact, the primary 

deliberative process that EPA has engaged in with other federal agencies was during the Office 

and Management Budget (“OMB”) interagency review process of the draft proposal delivered to 

OMB by EPA that would have over turned the Agency’s earlier final Regulatory Determination 

where virtually all of the federal agencies review the Subtitle C option – including OMB, CEQ, 

Corps of Engineers, DOE, DOI (Bureau of Reclamation and Office of Surface Mining) DOT, 

TVA, and USDA opposed or sharply questions the Subtitle C option.]. 

The failure of EPA to prepare a Report to Congress outlining fully and comprehensively the 

Agency’s recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds 

with the plain language of the statute. This failure deprives Congress of its statutorily-prescribed 

right to be fully informed of any such recommendation so that it can evaluate and respond, as 

appropriate, to the Agency’s proposed course of action before EPA makes a final Regulatory 

Determination and develops federal regulations. For example, if EPA had recommended in the 

Reports to Congress that it did submit to Congress in 1988 and 1999 that the Agency’s 

recommendation was to regulate CCRs under RCRA Subtitle C, Congress could have informed 

EPA of its concerns and taken any number of steps, including legislative action, to ensure the 

final Regulatory Determination was consistent with the “national commitment to develop a 

coherent and consistent policy toward the use of our coal and other energy resources.” Id. 

Indeed, the very purpose of Congress requiring EPA to submit its Report to Congress was to 

ensure that any final Regulatory Determination appropriately reflect Congress’ intentions that 

any regulation of CCRs not discourage the development of coal as one of the national primary 

sources of energy. This is precisely the type of oversight role that Congress reserves for itself 

when requiring agencies to submit reports to Congress prior to taking regulatory action. See 

Natural Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 319 (D.C. Cir. 1988) (“NRDC 

v. Hodel”) (in explaining Congress’ ability to respond to an agency report required to be 

submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention 

that the most representative branch is not powerless to vindicate its interests or ensure Executive 

fidelity to Legislative directives.”). Indeed, “congressional reporting statutes are a management 

tool employed by Congress for its own purposes[.]’“ College Sports Council v. Gov't 

Accountability Office, 421 F. Supp. 2d 59, 67 (D.D.C. 2006), citing, NRDC v. Hodel, 865 F.2d at 

319) [Footnote 8: See also generally James R. Bowers, “Regulating the Regulators” (1990); Joel 

D. Aberbach, “Keeping a Watchful Eye: The Politics of Congressional Oversight 132” (1990). 

For example, Congress can control agency action by writing more detailed legislation, by 

requiring staff investigations or field studies, or through agency reports required by Congress. 

See alsoUnited States v. S. Ind. Gas & Elec. Co., 2002 U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. 

Oct. 24, 2002) (noting that the purpose of Congress requesting an agency to report on a new rule 

was “was to provide a check on administrative agencies’ power to set policies and essentially 

legislate without Congressional oversight.”)]. In this case, EPA’s failure to prepare a Report to 

Congress regarding its proposal to regulate CCRs under RCRA’s hazardous waste program has 

completely eviscerated the statutory oversight role that Congress was to have in Bevill 

Amendment decision-making process for CCRs. 

Further, EPA’s failure to prepare and submit a Report to Congress violates the express terms of 
343

the statute that any final Regulatory Determination be based on public hearings and comments on

the Report to Congress. This requirement is not satisfied by the truncated and amended review of 

the Bevill Amendment’s statutory study factors presented by EPA in this proposal. The language 

of the statute and its legislative history could not be clearer: the Bevill Amendment provides that, 

following submission of its Report to Congress and public hearings and comment on the report, 

EPA was to publish its regulatory determination “which shall be based on information developed 

or accumulated pursuant to such study [i.e., EPA’s Report to Congress], public hearings and 

comment in the Federal Register accompanied by an explanation and justification of the reasons 

for it.” RCRA § 3001(b)(3)(C). As the Supreme Court stated in National Railroad Passenger 

Corp. v. National Association of Railroad Passengers (Amtrak), “[w]hen a statute limits a thing 

to be done in a particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 

(1974). 

Thus, even assuming EPA was authorized to render a new and revised Regulatory 

Determination, such determination must be preceded and predicated on a new Report to 

Congress. Even EPA has recognized that the any final Regulatory Determination must be 

predicated on the Report to Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed 

the Bevill statutory study factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he 

findings of these two Reports to Congress were the basis for our decisions in the August 1993 

and May 2000 Regulatory Determinations to maintain the Bevill exemption for CCRs.”).

Representative Bevill underscored the point that the public hearing and comment process was 

intended to directly respond to EPA’s Report to Congress and that any final Regulatory 

Determination was to be based on the information resulting from that process: “Finally, let me 

direct the House’s attention to the fact that after EPA concludes these studies, it will be required 

to obtain public views on them and to make known whether, as a result of this process, EPA 

believes any regulation of these materials is necessary.” 125 Cong. Rec. 3362 (emphasis added). 

Consistent with the plain language of the statute and the accompanying legislative history, the 

D.C. Circuit has expressly held that the final Regulatory Determination be based on EPA’s 

Report to Congress. SeeEDF v. EPA, 852 F.2d at 1314) (“The statute clearly states that the 

agency is to base its regulatory determination on the information gathered for the § 8002(p) 

study”) [Footnote 9: The Section 8002(p) study refers to the EPA’s Report to Congress on 

certain mining wastes that also were subject to the Bevill Amendment. Importantly though, the 

D.C. Circuit’s decision is equally applicable to CCRs, as the statutory process for EPA issuing a 

final Regulatory Determination for mining wastes and CCRs is identical. See § RCRA 

3001(b)(3)(C) (referencing both the CCR § 8002(n) study and mining waste § 8002(p) study)].

Here, of course, there is no Report to Congress recommending that CCRs be regulated under 

RCRA Subtitle C. In fact, the Reports to Congress that EPA did submit reached just the opposite 

conclusion. EPA may believe that its abbreviated review of the Bevill statutory factors in the 

proposed rule is the functional equivalent to preparing and submitting a Report to Congress, but 

the Agency’s view is flawed for at least two reasons. First, such a position would be at direct 

odds with the plain language of the statute, which expressly commands that any final Regulatory 

Determination be based on the Report to Congress. Congress included this requirement in the 

Bevill Amendment to ensure that EPA fully and comprehensively explain its reasoning to 

Congress and that Congress have an oversight role in EPA’s issuance of the final Regulatory 

Determination.

Second, the statute does not authorize the Agency to collapse the Bevill Amendment’s statutory 

decision-making process into the more abbreviated exercise the Agency is undertaking here by 
344

combining a proposed reversal of its early final Regulatory Determinations with the proposed 

development of Subtitle C regulations for CCRs. As EPA candidly admits, the end result would 

be the issuance of a new final Regulatory Determination calling for Subtitle C regulation 

simultaneous with the issuance of the final Subtitle C regulations. This ignores the plain 

language and purpose of the Bevill Amendment.

Section 3001(b)(3)(C) of RCRA provides, in pertinent part, that after issuing and obtaining 

public input on its Report to Congress, EPA is to “either determine to promulgate regulations” 

for CCRs under RCRA Subtitle C “or determine that such regulations are unwarranted.” The 

Agency was then directed to publish its final determination in the Federal Register. Id. As the 

D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the terms 

‘determination]’ and ‘regulation[],’ . . . signifying that, consistent with the principle that effect 

must be given to each word of a statute, the two terms were intended to have distinct meanings.” 

American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996). Given this 

distinction, the sequence of actions directed by Section 3001(b)(3)(C) makes clear that the 

regulatory determination – whether or not to regulate CCRs under Subtitle C – was to be a 

separate and distinct step from the subsequent promulgation of any such regulations. This stepwise process is consistent with Congress’ directive to EPA, as reflected throughout the Bevill 

Amendment’s legislative history, the Agency was to employ a more deliberative, sequential 

process that involved public and congressional input on whether and how EPA should regulate 

CCRs in the first instance. Only after the Regulatory Determination has been issued does the 

statute contemplate EPA undertaking any appropriate rulemakings based on the Determination. 

For all the above reasons, even assuming EPA had the authority to revisit and reverse its final 

Regulatory Determination for CCRs, the Agency’s proposed Subtitle C option does not comport 

with the statutory process that Congress demanded EPA adhere to in determining whether and 

how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough 

studies demonstrating a clear need for regulation; provide to Congress a report detailing its 

findings on those studies; conduct public hearings and solicit comments on that Report to 

Congress, issue a final determination based on the report to Congress and public comment on 

that report regarding whether and how to regulate CCRs under RCRA. Congress did not 

painstakingly craft such mechanisms into the statute for its own amusement, and EPA is not at 

liberty to ignore such clear congressional intent

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-21

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
345

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.2

Comment Excerpt Text:

A. The Subtitle C Option Is Inconsistent With The Bevill Amendment Because It Would 

Adversely Impact CCR Beneficial Use And Is Based On The Arbitrary And Capricious Position 

That Subtitle C Regulation Of CCRs Will Increase Beneficial Use

EPA’s theory that regulating CCRs under RCRA’s Subtitle C will actually increase CCR 

beneficial use is one of the most fallacious aspects of the CCR proposal. This position ignores 

(1) actual marketplace evidence, which already is showing declines in CCR beneficial use just 

from the threat of Subtitle C regulation, (2) EPA’s own prior positions, (3) the nearly unanimous 

position of other federal agencies and state environmental protection agencies, (4) the views of 

standards setting organizations that have no economic, political or other vested interests in the 

outcome of this rulemaking, (5) the long-standing view of Congress, and (6) the position of 

electric utilities – the very entities that would introduce the CCRs into the beneficial use market.

EPA identifies the array of valid concerns raised by the CCR beneficial use industry, utilities, the 

states, standard setting organizations, and others that Subtitle C regulation will effectively cripple 

the CCR beneficial use market, but remarkably offers little if any response to these points. EPA 

expressly acknowledges that under Subtitle C option, some states, such as Florida, “would likely 

prohibit the beneficial use of CCRs.” Id. at 35187. Instead of providing substantive responses to 

these concerns, EPA persists in its position that it understands the economic drivers in the CCR 

beneficial use market better than those actually engaged in the business. EPA argues that driving 

up the costs of CCR disposal as high as possible (as would happen under the Subtitle C option) 

would force more CCRs into the beneficial use market. Id. EPA’s theory, however, is based on 

flawed examples, and ignores the first-hand knowledge of those actually involved in the CCR 

beneficial use market who have consistently provided EPA with information and data 

demonstrating that any form of Subtitle C regulation will cripple the beneficial use of CCRs. 

EPA’s theory also fails to consider whether the marketplace can in fact absorb the vastly 

increased volume of CCRs that it speculates will be beneficially used under the Subtitle C 

option. Both the CCR producers and the CCR beneficial use market have explained that this is 

not the case.

Rather than substantiate its theory that CCR beneficial use will increase under Subtitle C, EPA 

places on those involved in CCR beneficial use the burden of providing “actual instances” of the 

adverse impact on beneficial use from a Subtitle C regulation that has yet to be promulgated. Id. 

at 35222-23. While it is impossible for anyone to prove the effects of regulations that have not 

yet been promulgated, ash marketers, utilities and others have presented EPA with real world 

data showing the adverse impacts on CCR beneficial use resulting from the mere threat of 

Subtitle C regulation. The only support EPA offers for its theory that CCR beneficial use will 

increase under Subtitle C are examples of certain materials for which EPA claims recycling has 

increased since becoming subject to hazardous waste regulation. Id. at 35186-87. Here too, EPA 

admits that some its examples involve materials that, unlike CCRs, “are not used in residential 

settings.” Id. at 31586. Moreover, as discussed below, certain of the examples cited by EPA 

involve materials that are not actually regulated under RCRA Subtitle C. Another example 

involves used oil, which EPA specifically declined to list as a hazardous waste precisely because 

of its concerns that doing so would undermine the used oil recycling market.

EPA also argues that any stigma resulting from Subtitle C regulation will be “significantly 

reduced by listing CCRs as a “special waste” under RCRA’s hazardous waste regulations (id. at 
346

35187) attempting to deflect attention from the reality that these materials would be subject to 

hazardous waste regulation from the point of generation until their ultimate disposal. EPA’s 

“special waste” label will do nothing to reduce the potential legal liabilities of using a material in 

a commercial or residential setting that is a listed waste under Subtitle C and subject to 

hazardous waste regulation when disposed of.

RCRA’s statutory provisions make clear that only materials that are “hazardous waste listed or 

identified” under Subtitle C are subject to the statute’s hazardous waste controls, including, 

among other things, its permitting, substantive design and operating standards, and corrective 

action requirements. See, e.g., RCRA §§ 3004(a) (EPA is to establish regulations for “owners 

and operators of facilities for the treatment, storage or disposal of hazardous waste identified or 

listed under this subchapter”) & 3005(a) (EPA is to require permits for “the treatment, storage, 

or disposal of hazardous waste identified or listed under this subchapter”). Put another way, only 

“hazardous wastes” – not “special wastes” – can be subject to RCRA’s Subtitle C controls. There 

is no way around the “hazardous waste” label and the associated stigma that comes with this 

designation if EPA subjects CCRs to Subtitle C controls. In short, the language of RCRA renders 

impossible EPA’s purported goal of avoiding the stigma associated with the hazardous waste 

label through the application of the “special waste” label for CCRs while simultaneously 

subjecting CCRs to Subtitle C regulation.

In evaluating the potential impacts of Subtitle C regulation on CCR beneficial use, it is important 

to note that the sponsors of the Bevill Amendment cautioned EPA against regulation of CCRs 

under Subtitle C for precisely the same reasons being offered today by opponents of the Subtitle 

C option: subjecting CCRs to the stringent Subtitle C program is certain to have adverse impacts 

on the use of these materials. 

Considering the above in addition to the record evidence already assembled in this rulemaking 

proceeding, it is clear that regulating CCRs under any Subtitle C hazardous waste regime, even 

with the “special waste” label, will have a significant adverse impact on CCR beneficial use. 

These issues are discussed further below

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-27

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. The Subtitle C Option Is Inconsistent With The Bevill Amendment And Arbitrary And 

Capricious Because It Would Result In Unnecessary And Excessively Burdensome Regulation 

Of CCRs

A fundamental purpose of the Bevill Amendment is to ensure that any final regulatory option 

that EPA selects for CCRs utilizes cost-effective controls, avoiding imposition on the utility 
347

industry of undue costs that would discourage the use of coal. As noted above, Representative 

Bevill could not have been more direct on this point when introducing his Amendment: “Let me 

be quite candid in expressing my particular concern that the House not allow EPA to take steps 

that will discourage the use of coal.” 126 Cong. Rec. 3361.

Simply put, the Bevill Amendment is intended to ensure that any final regulation of CCRs not 

discourage “development of coal as a primary domestic source of energy” and therefore not 

result in “unnecessary inflationary impact[s]” on the use of coal from overly stringent CCR 

regulations. Id. As the D.C. Circuit has recognized, Congress’s emphasis on avoiding undue 

economic impacts on CCR controls and concerns with the costs of regulatory controls “[are] 

consistent with Congress’ obvious goal in enacting the Bevill Amendment – to relieve [the Bevill 

industries] of the onerous economic burden of stringent Subtitle C controls if at all possible.” 

EDF v. EPA, 852 F.2d at 1314 (emphasis added).

EPA’s Subtitle C option is flatly inconsistent with Congress’s “obvious goal in enacting the 

Bevill Amendment” to avoid Subtitle C regulation and the associated regulatory costs of this 

option “if at all possible.” Indeed, EPA readily acknowledges that one of the express purposes of 

the Subtitle C option “is to increase the costs of CCRs” under the Agency’s misguided 

impression that this will increase CCR beneficial use. 75 Fed. Reg. at 35185 (emphasis added). 

In fact, as discussed below, EPA’s proposed Subtitle C option would regulate CCR disposal 

facilities more stringently than any other hazardous waste by taking the unprecedented step of 

extending Subtitle C controls to previously closed and inactive CCR surface impoundments. Id. 

at 35177. Thus, not only does the Subtitle C option reflect the most extreme and costly 

regulatory choice available to EPA under RCRA, it would apply the hazardous waste disposal 

rules to CCRs in a manner more stringent than that previously applied to any other hazardous 

wastes.

This draconian approach to regulating CCRs under RCRA is diametrically opposed to the very 

purpose and objective of the Bevill Amendment and cannot be pursued. While Congress directed 

EPA to select the most cost-effective regulatory option for CCRs so as not to discourage the use 

of coal as one of the primary sources of domestic energy, the proposed Subtitle C option appears 

to be specifically designed to have just the opposite result; namely, to make the disposal of CCRs 

as costly and as burdensome as possible in an attempt to discourage the use of coal and force 

reliance on other sources. 

Such an approach is unsupportable given the fact that EPA itself readily acknowledges that 

“[t]he [CCR disposal] controls for the RCRA subtitle D option are identical to the subtitle C 

option.” 75 Fed. Reg. at 35213. At the same time, EPA identifies that the Subtitle C compliance 

costs for utilities would be at least three times higher than for the “identical” controls under the 

Subtitle D option ($1,474 million under the Subtitle C option versus $585 million under the 

Subtitle D option). Id. EPA concedes further that its estimated Subtitle C costs do not include the 

costs for complying with certain significant components of the Subtitle C regulations, including 

for example the costs of facilities having to retrofit or upgrade CCR management units to meet 

the Subtitle C storage design and operating standards. Id. at 35212 (although listed as a Subtitle 

C compliance element, EPA explains that these costs were not included in the Regulatory Impact 

Analysis (“RIA”) “because of EPA lack of information on baseline CCR storage practices.”). 

Given that the substantive disposal controls under the Subtitle D option would be effectively 

identical to those provided for under the Subtitle C option at far less cost and without the severe 

impact on the use of coal, the Subtitle C option is directly inconsistent with the stated purpose of 

the Bevill Amendment and cannot be pursued.
348

In addition to being inconsistent with the Bevill Amendment, EPA’s selection of the Subtitle C 

option would be arbitrary and capricious because the Agency has provided no explanation as to 

why its earlier conclusions that the Subtitle C option would result in excessive and inappropriate 

regulatory controls for CCRs are no longer true. In its 1993 final Regulatory Determination 

concluding that the four large volume CCRs – fly ash, bottom ash, boiler slag, and flue gas 

desulfurization waste – do not warrant hazardous waste regulation, EPA emphasized that the 

inflexible Subtitle C hazardous waste framework was inappropriate for CCRs, explaining "that it 

is unlikely that Subtitle C would effectively address the problems associated with the four largevolume fossil-fuel combustion wastes [CCRs] without imposing unnecessary costs." Id. at 42477 

(emphasis added).

This was an important conclusion, because as the Agency explained in outlining the factors that 

it would evaluate in making a final regulatory determination, "the special status of the [CCR] 

waste requires that the Agency consider the impacts to the industry that regulation under Subtitle 

C would create in making a decision to regulated the waste as hazardous." 58 Fed. Reg. at 42471. 

EPA found that the rigid nature of the Subtitle C regulatory system would result in excess costs 

and unnecessary regulation as applied to CCR management units. After acknowledging that 

CCRs rarely exhibit a hazardous waste characteristic and thus would not be subject to hazardous 

waste controls unless they were listed as a hazardous waste, EPA emphasized that the listing 

approach would be inappropriate and excessive:

Furthermore, it was noted that even if these wastes were listed as hazardous, and therefore, 

regulated under Subtitle C, such an approach would be inappropriate for these wastes. A Subtitle 

C system would require coal combustion waste units to obtain a RCRA Subtitle C permit (which 

would unnecessarily duplicate existing State requirements) and would establish a series of waste 

unit design and operating requirements for these wastes, which would generally be in excess of 

requirements to protect human health and the environment.

Id. at 42477 (emphasis added). 

EPA reiterated this conclusion in its 1999 Report to Congress, explaining that the “that [RCRA] 

Subtitle C is inappropriate to address any problems associated with disposal of these wastes and 

that the continued use of site and region specific approaches by the states is more appropriate for 

addressing the limited human health and environmental risks that may be associated with 

disposal of these wastes.” Id at 3-5. EPA emphasized that regulating CCRs under RCRA's 

hazardous waste program "would unnecessarily duplicate existing State requirements, and would 

establish a series of waste unit design and operating requirements for these wastes that would 

most often be in excess of requirements to protect human health and the environment." Id. 

(emphasis added).

Having previously concluded that the Subtitle C approach would be inappropriate because, 

among other reasons, it would result in the over-regulation of CCRs in contravention of the 

Bevill Amendment, EPA provides no explanation whatsoever in this proposal as to what, if 

anything, has changed to suggest that the imposition of these very same Subtitle C controls will 

no longer result in inappropriate and unnecessary costs on the utility industry. As EPA itself 

noted earlier, “the special status of the [CCR] waste requires that the Agency consider the 

impacts to the industry that regulation under Subtitle C would create in making a decision to 

regulate the waste as hazardous.” Id. at 42471. There is no reasoned explanation for EPA’s 

about-face on this issue.

The excessive costs and unduly burdensome regulation of CCRs under the proposed Subtitle C 

option are at least as great today as they were ten years ago when EPA rejected application of the 
349

Subtitle C hazardous waste rules for CCRs. As EPA has completely failed to explain why 

regulation of CCRs under Subtitle C is now appropriate, having expressly found earlier that such 

regulation would be both “inappropriate” and in “excess of requirements” for CCRs, any final 

Subtitle C regulation would arbitrary and capricious. SeeS. Co. Servs. v. FCC, 313 F.3d 574 

(D.C. Cir. 2002) (noting that, in evaluating whether an agency’s changed position is arbitrary and 

capricious, “the issue is whether the agency furnished a reasoned explanation for its changed 

position.”).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-28

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. The Subtitle C Option Is Arbitrary And Capricious Because It Is Inconsistent With The Views 

Of The Other Federal And State Agencies That EPA Was To Consult With In Reaching A Final 

Regulatory Determination

EPA’s proposed Subtitle C option is opposed by virtually every federal and state agency that has 

weighed in on this rulemaking. This broad opposition to the Subtitle C option is significant 

because the Bevill Amendment and its legislative history make clear that the informed views of 

these agencies were to be considered by EPA in the issuance of any final regulatory 

determination for CCRs. Given this across-the-board opposition to the Subtitle C option by the 

groups Congress directed EPA to consult with as part of the decision-making process for CCRs, 

selection of the Subtitle C option would be inconsistent with the statute and arbitrary and 

capricious. See, e.g., Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1273 (D.C. Cir. 

2004) (holding that it was arbitrary and capricious for EPA to issue a regulation directly contrary 

to the opinion of the National Academies of Science with which the EPA was required by statute 

to consult).

The statute specifically directs that EPA, in preparing its study on CCRs, “shall, as [the 

Administrator] deems appropriate, review studies and other actions of other Federal and State 

agencies concerning such material and invite participation by other concerned parties, including 

industry and other Federal and State agencies, with a view toward avoiding duplication of 

effort.” RCRA § 8002(n); 42 U.S.C. § 6982(n). As noted above, Representative Bevill elaborated 

on this collaborative process by emphasizing that “EPA’s studies should not proceed in a 

vacuum,” but rather that EPA was to reach out to those with expertise in the field. As 

Representative Bevill emphasized:

Moreover, EPA should seek the assistance and cooperation of those most expert in this field. 
350

With regard to fossil fuel byproducts, I include in this category not only representatives of coalburning industries, but personnel from other agencies of Government that are aware of the role 

coal plays in our national energy policy, or of actual disposal and utilization practices. These 

agencies include the Department of Energy, the Department of the Interior, the Federal Highway 

Administration, Department of Commerce, the Department of Agriculture,among others. In the 

face of our current energy crisis and the increasing costs of Government, American taxpayers 

cannot afford to have separate agencies of Government working without coordination. Instead, 

we need a cooperative, informed effort directed to the goals the President has set for us.

126 Cong. Rec. at 3362 (emphasis added).

During the inter-agency review process by OMB’s Office of Information and Regulatory Affairs, 

the very agencies that Congress directed EPA to consult with regarding any final determination 

for CCRs uniformly opposed or sharply questioned the Subtitle C option. For example, the 

Department of Energy emphatically rejected EPA’s proposed regulation of CCR under Subtitle 

C: 

DOE continues to believe that the regulation of these [coal combustion] practices under RCRA 

subtitle C as hazardous waste is unwarranted, and supports the continued collection of 

information to help resolve EPA’s concerns regarding CCRs. 

EPA ruled in 2000 that a Subtitle C designation was unwarranted, and all available evidence 

supports the conclusions made at that time. Continued evidence does show that unlined units 

have caused environmental damage; however, the promulgation of this Subtitle C regulation to 

treat all CCRs as hazardous waste does not appear to be justified, especially when, as mentioned 

by EPA in the preamble, the disposal practices at power plants have shown a history of 

improvement and are continuing to improve. The benefits of CCR regulation under Subtitle C 

are not apparent and DOE urges EPA to fully understand the implications of such a regulation 

before going forward with the current proposed designation.

In the Regulatory Determination (RD) of 2000, which DOE agreed with, EPA decided to 

regulate CCRs as Subtitle D waste, stating that “The Agency has determined that industry 

practices are moving toward increased use of control measures (liners, covers, etc.) and 

groundwater monitoring.” This statement is further reinforced by the 2006 joint DOE/EPA report 

on recent disposal practices [Footnote 19: Coal Combustion Waste Management at Landfills and 

Surface Impoundments, 1994-2004. Available publicly at: http://www.osti.gov/bridge.]. 

Despite the indication of better disposal practices, the proposed rule advocates Subtitle C 

regulations. This is in direct opposition to the 2000 RD that Subtitle C regulations were 

unwarranted, when EPA determined “that it is unlikely that Subtitle C would effectively address 

the problems associated with the four large-volume fossil-fuel combustion wastes without 

imposing unnecessary controls.

Interagency Working Comments on Draft Rule under EO 12866 at p. 21-22.

The Department of the Interior (“DOI”) sharply questioned the Subtitle C option and echoed the 

concerns referenced above by the CCR beneficial use industry that “[r]egulating CCR disposal as 

RCRA Subtitle C, in full or by implementing a hybrid regulation, we believe that the availability 

to purchase fly ash for use in concrete will be eliminated. Id. at 26. DOI stated that it concurs 

“with industry leaders who feel strongly that if fly ash is designated as a hazardous waste, fully 

or in a hybrid classification, it will no longer be used in concrete.” Id.

The Department of Transportation (“DOT”) similarly cautioned EPA against regulating CCRs 

under Subtitle C because of the adverse impact on CCR beneficial use:

DOT is concerned about the negative impacts that may result from designating fly ash as a 
351

hazardous material ... . The Rule would designate all CCRs as hazardous and then exempts 

beneficial uses. However, DOT is concerned that this approach is confusing, and may still have 

unintended consequences associated with Subtitle C. For example, many states have policies that 

forbid the use of any hazardous materials. Thus, if fly has is designated as a hazardous material, 

it would fall under these general State prohibitions and would legally prevent the use of fly ash 

in public works structures and highways. Furthermore, an exemption in a Federal regulation 

probably would not negate State laws. If a material is in any manner considered hazardous, 

States will not risk future liability.

Id. at pg. 30. The Department of Agriculture also cautioned EPA that: “Listing of all CCRs as 

hazardous waste significantly inhibits recognized, current, and continuing beneficial uses.” Id. at 

46.

Comments submitted by the White House Council for Environmental Quality (“CEQ”) directly 

challenged the Subtitle C option, explaining that “it will be very expensive to regulate CCR with 

likely little environmental benefit based on what has been presented thus far . . . less expensive 

approaches could include enforcement of annual inspections which would provide much greater 

environmental benefits relative to those proposed.” Id. at 17. CEQ also noted that approximately 

2.5 tons of materials are disposed of annually as hazardous waste and that bringing CCRs into 

the hazardous waste system would add “the order of 130 million tons per year to this inventory,”

thus causing disposal capacity shortfalls and likely requiring some facilities “to shut down 

temporarily, or permanently, due to the lack of viable hazardous waste disposal options.” Id. 

Further, CEQ identified the serious compliance challenges that would be imposed on utilities 

under the Subtitle C option, including the fact that de minimis releases of CCRs “would 

constitute improper hazardous waste disposal and subject facilities to non-compliance.” Id. 

Given these problems, CEQ recommended that the Agency “re-examine if Subtitle C regulation 

is warranted, in accordance with Section 3004(x) EPA, and focus in on the special characteristics 

of such waste, the practical difficulties associated with implementation of such requirements, and 

site-specific characteristics.” Id. at 18.

In addition to the above federal agencies, Congress directed EPA to consult with state agencies 

in assessing whether and how to regulate CCRs under RCRA. As noted above, state trade 

associations and individual state environmental protection agencies have uniformly advised EPA 

that regulating CCRs under Subtitle C would have a devastating impact on CCR beneficial use. 

In addition, however, national associations representing state governments have more broadly 

advised EPA of their opposition to the Subtitle C option because it would be duplicative of and 

disruptive to existing state controls for CCRs. It is precisely this type of duplication that the 

Bevill Amendment directs EPA to avoid. See RCRA § 8002(n).

For example, the National Governors Association advised EPA that the “Governors support their 

state-run programs and have concerns regarding potential federal regulation of CCW. ... In 

summary, Governors are very concerned about potential federal regulation of CCW as either a 

hazardous or nonhazardous substance under RCRA. While we are unaware of issues EPA may 

have with our state programs, we hope to work with you and your staff to address any 

questions.” Letter from National Governors Association to EPA at p. 1 (Nov. 16, 2009). The 

Western Governors’ Association also disagreed with EPA’s proposed regulation of CCRs under 

Subtitle C: 

The federal regulation of CCB as hazardous waste would undercut existing and effective state 

regulatory authority resulting in additional and unwarranted regulatory programs and would add 

costly burdens to states’ budgets that are already significantly strained. States should review their 
352

existing regulations of CCB and make any changes necessary in light of the 2008 TVA 

impoundment pond failure. 

Western Governors agree with US EPA’s 1993 and 2000 regulatory determinations that CCB do 

not warrant regulation as hazardous wastes and that the western states have an effective 

regulatory infrastructure in place to continue as the principal regulatory authorities to ensure 

protection of human health and the environment through the safe and secure management of 

CCB under state solid waste, groundwater protection and coal mine regulatory programs.

Western Governors Association, Policy Resolution 10-1.

The Environmental Council of the States (“ECOS”) also expressly opposed EPA’s proposed 

regulation of CCRs under Subtitle C, stating that ECOS:

Agrees with U.S. EPA’s repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCW 

disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C;

Agrees with U.S. EPA’s finding in the 2005 study previously cited that “the regulatory 

infrastructure is generally in place at the state level to ensure adequate management of these 

wastes” and believes that states should continue to be the principal regulatory authority for 

regulating CCW as they are best suited to develop and implement CCW regulatory programs 

tailored to specific climate and geological conditions designed to protect human health and the 

environment;

Therefore [ECOS] calls upon U.S. EPA to conclude that additional federal CCW regulations 

would be duplicative of most state programs, are unnecessary, and should not be adopted, but if 

adopted must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in 

addition, urges U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a 

collaborative dialogue with the states to develop and promote a national framework for 

beneficial use of CCW including use principles and guidelines, and to accelerate the 

development of markets for this material.

ECOS, Revised Resolution Number 08-14 (Mar. 23, 2010).

The Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) also 

has expressly rejected EPA’s proposed regulation of CCRs under Subtitle C: 

To artificially classify [coal combustion products (CCB)] as hazardous will needlessly limit the 

management options for both the CCBs and other wastes legitimately classified as hazardous 

which will be competing with CCBs for limited hazardous waste disposal capacity, while not 

producing any great degree of environmental protection. Transportation, manifesting and 

licensing requirements for CCBs as a listed hazardous waste are excessively burdensome without 

sufficient evidence of a benefit. It would be more appropriate to regulate and manage CCBs 

using design and operation standards specified for Subtitle D programs except in cases where a 

particular source material is deemed hazardous upon testing for characteristics.

The most compelling reason not to impose Subtitle C regulations is that the beneficial use of 

CCB has been very successful. The “hazardous” label of Subtitle C would be detrimental to State 

CCB beneficial use programs[.] Regulation under RCRA Subtitle C has the potential to put an 

end to many beneficial uses for CCB.

Letter from ASTSWMO to EPA, at pp. 4-5 (Apr. 1, 2009).

In short, the statute and its legislative history make clear that that EPA was to “seek the 

assistance and cooperation of those most expert in this field,” including the above-referenced 

federal and state agencies, in making a regulatory determination. EPA’s selection of the Subtitle 

C option would be directly contrary to the unanimous opinion of these informed parties and to 
353

Congress’ directive that EPA produce a “collaborative, informed” regulatory determination for 

CCRs

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. The commenter is referred to V of the preamble discussion for the Agency’s 

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

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

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

Comment Number: EPA-HQ-RCRA-2009-0640-06956-29

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

VII. EPA’s PROPOSED LISTING OF CCRs AS A SPECIAL WASTE IS LEGALLY 

DEFECTIVE

EPA proposes to regulate CCRs under the Subtitle C option by listing CCRs as a “special” waste 

under RCRA’s hazardous waste regulations. 75 Fed. Reg. at 35166. The listing would apply to 

all CCRs destined for disposal. Id. In proposing to regulate CCRs, the Agency evaluated CCRs 

against the listing criteria in 40 C.F.R. § 261.11(a)(3). Id. at 35166. Under this provision, EPA 

may list a waste as hazardous if, after evaluating ten individual criteria, the Agency concludes 

that “the waste is capable of posing a substantial present or potential hazard to human health or 

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

managed.” Id. at 35167 [Footnote 20: While the regulation lists eleven criteria, there are really 

only ten, as the eleventh factor is a “catch-all, allowing the Administrator to consider any other 

factor she finds relevant.” Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1398 (D.C. Cir. 

1996).]. As discussed above, despite referring to CCRs captured by the listing as “special waste,” 

EPA readily acknowledges that CCRs included in the listing description would be regulated 

under the full scope of RCRA’s Subtitle C hazardous waste regulations, including “40 C.F.R. 

parts 260 through 268 and 270-279 and 124, and subject to the notification requirements of 

section 3010 of RCRA.” Id. at 35166.

CCRs included in the listing would be categorized as “Coal combustion residuals generated by 

the electric power sector (Electric Utilities and Independent Power Producers)” and assigned 

EPA waste code S001. Id. at 35254 (proposed 40 C.F.R. § 261.50(a)) [Footnote 21: For purposes 

of this listing, the electric power sector would be defined “as electricity-only and combined-heatand-power (CHP) plants whose primary business is to sell electricity, or electricity and heat, to 

the public; i.e., NAICS code 221112 plants.” Id. (proposed 40 C.F.R. § 261.50(b)).]. For 

purposes of the proposed S001 listing, the term “coal combustion residuals” is defined to include 

“fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated by the electric 

utility industry.” Id. (proposed 40 C.F.R. § 261.50(b)). The listing would cover CCRs disposed 
354

of in any type of disposal unit, regardless of the location of the unit and/or whether it has a liner 

and/or groundwater monitoring system. 

EPA’s proposed listing of CCRs is fatally defective for a number of reasons, including (1) the 

scope of the proposed listing is overly broad and, as a result, the Agency has not properly 

evaluated the individual CCRs against the listing criteria; (2) EPA has employed an unrealistic 

scenario in evaluating the “plausible mismanagement” scenario to which the waste could be 

subjected; (3) EPA has not identified, let alone evaluated, other federal and state regulatory 

programs applicable to CCRs as required by the listing criteria; (4) the risk assessment that 

serves as the cornerstone for certain elements of the proposed listing contains fundamental 

errors; and (5) EPA’s draft screening analysis involving the potential risks for CCR fugitive dust 

emissions is based on overly conservative inputs and does not reflect real world conditions. As a 

result of these flaws, EPA may not list any of the four CCRs as a listed waste under Subtitle C

Response: The Agency acknowledges and appreciates the comment, however in that the 

Agency is finalizing a subtitle D rule for the management of CCR, the commenter’s arguments 

regarding the potential promulgation of a subtitle C rule for the regulation of CCR is outside the 

scope of this rulemaking. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-10

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Additionally we believe that CCR’s clearly meet the definition of high-volume, low-toxicity 

waste to classify it under the additional consideration of the Bevill congressional amendment to 

RCRA. EPA has willfully failed to give appropriate legal weight to the amendment which was 

passed as an act of Congress and signed into law by the President. EPA appears to be giving 

greater weight to their own regulations over the federal law which violates numerous legal 

principles and precedents.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-18

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government
355

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

MJMEUC contends that EPA has willfully failed to accord CCR regulation the appropriate 

treatment under the Bevill Amendment and as such the proposed regulations are fatally flawed.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-06993-3

Organization1:Oglethorpe Power Corporation

Commenter1: Douglas J. Fulle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As explained in NRECA's comments, in no event is regulation pursuant to Subtitle C of RCRA 

necessary, appropriate or even legally permissible under federal law. EPA lacks authority under 

the Bevill Amendment to promulgate the Subtitle C option. [Footnote 3: See 42 U.S.C. § 692 

1(b)(3)(C) (calling for EPA to make a one-time determination for CCBs).] The Bevill 

Amendment suspends EPA's authority to regulate CCBs, pending EPA completion of a series of 

formal steps, which included creation and submission of a study to Congress to determine 

whether such regulation was warranted and solicitation and consideration of public comments 

responding to the study. EPA completed its statutory obligations under the Bevill Amendment, 

by completing two reports to Congress (in March of 1988 and March of 1999) and by issuing 

two regulatory determinations (in August of 1993 and May of 2000), concluding that regulation 

under Subtitle C was unwarranted, and that development of national nonhazardous solid waste 

regulations under RCRA Subtitle D would be appropriate for CCBs disposed in landfills or 

surface impoundments. The Bevill Amendment does not give EPA the discretion to revisit "its 

1993 and 2000 determinations. Even assuming, for purposes of argument, that EPA has such 

authority, EPA fails to adhere to the procedures spelled out in the statute for CCBs in this 

rulemaking. [Footnote 4: See 42 U.S.C. § 6982(n).] Additionally, the Subtitle C option is 

arbitrary, capricious, and contrary to applicable law because it would harm the beneficial use of 

CCBs, present insurmountable compliance obstacles, create serious disposal capacity shortfalls, 

and impose tremendous costs on electric utilities, as noted previously. These burdens are not 

justifiable, given that EPA has set forth an alternative approach that imposes essentially the same 
356

controls on CCB disposal as the Subtitle C option without many of the attendant costs, 

compliance barriers and impairments to beneficial use.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07395-6

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle C option imposes unreasonable regulatory burdens on utilities and is in contrast to 

the Bevill Amendment's directive. Moreover, the imposition of a regulatory program that makes 

compliance with the program impracticable violates a basic tenet of administrative law that 

renders such actions as arbitrary and capricious [Footnote 26: See Alliancefor Cannabis 

Therapeutics v. DEA, 930 F.2d 936, 940 (D.C. Cir. 1991), citing D.C. Transit Sys., Inc. v. Wash. 

Metro. Area Transit Comm., 466 F.2d 394, 402 (D.C. Cir. 1972).].

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-18

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.3.1

Comment Excerpt Text:

GAEPD foresees problems with the proposed exemptions for CCRs at 40CFR261.4(b)(4)(i) and 

40CFR261.50(d)., particularly with regards to either direct use as fill or use as an ingredient in a 

product that will be placed on the land (UCD). Existing rules, at 40CFR261.2(e)(2)(i) and 

40CFR266.20, generally prohibit UCD except under narrow circumstances involving " ... a 

chemical reaction in the course of producing the product so as to become inseparable by physical 

means and ... meet the applicable treatment standards in subpart D of part 268 ... " EPA's 

proposal to abandon this long-standing regulatory rubric through the sophistry of classifying a 

material differently based upon "use", rather than management, reinforces our position 

(expressed above) that the Subtitle C listing proposal is in-feasible. GAEPD did not expand our 

evaluation to the 2008 DOSW Final Rule, as EPA has indicated that it will be re-proposed next 

summer.
357

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-1

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 3.1.2 7.3.1 10.4.2

Comment Excerpt Text:

Alpha is extremely concerned with EPA's proposal to regulate Coal Combustion Residue 

("CCR") as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act 

("RCRA") (42 U.S.C. § 6901, etseq.) For the reasons stated below, EPA's proposed action is 

illegal, arbitrary and capricious, and is yet another attack on the American coal industry. Coal 

continues to be the primary source of energy for the great majority of US electric power 

generation and CCR has been proven to be successfully and safely used in many beneficial 

applications. EPA's proposed action here would significantly and unnecessarily increase the cost 

of domestic energy supplies. It would also chill, if not preclude, these beneficial uses, and 

overwhelm state and local resources efforts to handle truly hazardous materials. The result of 

EPA's proposed action would be a dramatic step backward in environmental protection and 

ongoing efforts to achieve the congressional intent of RCRA, and will result in nothing more 

than making the United States economy more dependent on foreign energy sources, more 

vulnerable to energy price increases and volatility, and more at risk from exposure to real 

hazardous wastes.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-07802-5

Organization1:Alpha Natural Resources

Commenter1: Michael R. Peelish

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 7.3.1 10.4.2

Comment Excerpt Text:

In short, EPA's proposed action is illegal in that it fails to follow the Bevill Amendment under 

which it no longer has authority to regulate CCR as a hazardous waste. It is plainly arbitrary and 

capricious in that it ignores its prior determinations and fails to use appropriate scientific 

information in support of its decision. Instead of meeting EPA's primary goal of protecting the 
358

environment, EPA's proposal will make us all less safe, forcing greater reliance on foreign 

energy sources while overwhelming state resources for handling truly hazardous materials and 

precluding protective beneficial uses.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08227-71

Organization1:Gypsum Association

Commenter1: Michael Gardner

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 3.1.2 10.4.2 10.2.4 10.2.3.2

Comment Excerpt Text:

V. THE GYPSUM ASSOCIATION OPPOSES OPTION 1 AND PREFERS OPTION 2

A. Overview

The Proposed CCR Rule presents two regulatory options for public comment. Under Option 1, 

EPA proposes to overturn part of the longstanding Bevill exclusion to RCRA [Footnote 12: The 

Gypsum Association objects to EPA's jurisdictional basis for the Proposed CCR Rule or the 

promulgation of a Final Rule. The Solid Waste Disposal Act specifically directed EPA to 

undertake a detailed study and report on CCRs, and "after public hearings and opportunity for 

comment, either determine to promulgate regulations for each waste listed in subparagraph (n) of 

this paragraph or determine that such regulations are unwarranted." 42 U.S.c. §§ 

6982(n),6921(b)(3)(c). EPA undertook its study and determined that regulations were 

unwarranted in 1993. 75 Fed. Reg. at 35136-37. EPA confirmed this determination in 2000. Id. 

at 35137. The statute does not provide for a subsequent reconsideration or revisitation of that 

determination. EPA lacks authority to change course and now, more than ten years later, 

determine that regulations are warranted absent new legislation allowing it to do so.] and list all 

CCRs destined for disposal as a class of "special waste" subject to the full extent of hazardous 

waste regulations under Subtitle C of the Act. Option 2 would maintain CCRs' current regulatory 

status as non-hazardous under Subtitle D of RCRA, but would impose new performance 

standards for CCR land disposal activities. As discussed in this Section, the Gypsum Association 

strongly opposes Option 1, which would regulate FGD gypsum as a special waste in violation of 

RCRA's hazardous waste listing regulations. While EPA insists that Option 1 would not regulate 

beneficially used CCPs, such as FGD gypsum, significant uncertainty remains regarding the 

scope and applicability of the regulatory proposal, which is exacerbated by EPA's inconsistent 

terminology and statements about beneficial use throughout the preamble to the Proposed CCR 

Rule. See 75 Fed. Reg. at 35129. Moreover, even with the beneficial use exemption, the 

designation of CCRs as a special waste would seriously stigmatize FGD gypsum.Conversely, 

while the Gypsum Association believes that no regulatory changes are warranted, it prefers 

Option 2, provided that it maintains the current Subtitle D approach. Nevertheless, there are also 

significant open issues and uncertainty with Option 2. As a result of these uncertainties and to 
359

avoid the unintended potential consequences of negatively impacting the use of FGD gypsum, 

the Gypsum Association requests a specific exemption to confirm and clarify its exclusion from 

either regulatory proposal.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08227-76

Organization1:Gypsum Association

Commenter1: Michael Gardner

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.1

Comment Excerpt Text:

B. Option 1 would Improperly List FGD Gypsum as a Special Waste in Violation of RCRA

Under Option 1, EPA proposes to regulate all CCRs destined for disposal as a listed "special 

waste." EPA defines "CCRs" to include four different materials: "fly ash, bottom ash, boiler slag 

(all composed predominantly of silica and aluminosilicates), and flue gas desulfurization 

materials (predominantly Ca-SOx compounds) that were generated from processes intended to 

generate power." Id. at 35137 (emphasis added); see also id. at 35174 ("EPA is proposing to list 

CCRs generated by electric utilities and independent power producers destined for disposal as a 

special waste subject to the requirements of RCRA Subtitle C").EPA is authorized under existing 

RCRA regulations to list a class of materials as hazardous waste. 40 C.F.R. § 261.11(b). 

However, as the Agency has acknowledged in the preamble to its 1980 regulations for 

identifying hazardous waste, it is only appropriate to do so if the wastes "demonstrate a 

reasonable likelihood of hazard as a class." 45 Fed. Reg. 33084, 33144 (May 19, 1980). In 

addition, EPA bears the burden to demonstrate that sufficient uniformity exists or is likely to 

exist. Id. at 33144. EPA has failed to meet this burden in the Proposed CCR Rule, as no data or 

other information have been presented to support aggregating all CCR materials for listing as a 

single special waste class. Moreover, as discussed at length above, the available data demonstrate 

that FGD gypsum is not hazardous and is clearly distinguishable from the other materials defined 

as CCRs. EPA thus has no basis to combine the CCRs and, most importantly for the Gypsum 

Association, there are no grounds to include FGD gypsum in the proposed waste class. Option 1 

consequently cannot be adopted. See Dithiocarbamate Task Force v. Envtl. Prot. Agency, 98 

F.3d 1394, 1405 (D.C. App. 1996) (holding that EPA's proposed class waste listing must be 

vacated because the Agency failed to provide a reason for regulating a group of chemicals that 

are distinguishable on a key listing criterion).

EPA also has failed to adequately explain the basis for listing FGD gypsum as a special waste 

under Option 1. In the preamble to the Proposed CCR Rule, EPA maintains that CCRs should be 

listed as a special waste based on the listing criteria identified in Section 261.11(a)(3) of the 

RCRA regulations. 75 Fed. Reg. at 35166; see also 40 C.F.R. § 261.1 1(a)(3) (identifying eleven 
360

factors that EPA must consider in determining whether a waste should be listed as hazardous). 

However, none of the data, damage cases, or risk assessments cited by EPA satisfy these RCRA 

listing criteria with respect to FGD gypsum. Instead, EPA focuses on the potential risks 

associated with other CCR materials and more generally with waste management practices. EPA 

thus has failed to conduct the required technical analysis and risk assessment of FGD gypsum 

material. In the absence of a rational connection between EPA's supporting information and its 

decision to list FGD gypsum as a special waste, the Agency is left with baseless, conclusory 

statements about potential risks which cannot support a hazardous waste listing determination. 

See Am. Mining Cong. v. Envtl. Prot. Agency, 907 F.2d 1179, 1189 (D.C. App. 1990) 

(remanding EPA's hazardous waste listings because of the Agency's reliance on conclusory 

statements and failure to articulate a rational connection between its data and listing 

determination). Furthermore, in relying on such unsubstantiated assertions, EPA has failed to 

meet the affirmative burden imposed by the RCRA regulations. Specifically, Section 261.11 

provides that the Agency may make a listing determination "only upon determining that the solid 

waste meets [the listing criteria]." 40 C.F.R. § 261.11(a) (emphasis added). Again, no such 

determination has been made for FGD gypsum under Option 1.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08228-5

Organization1:Detroit Regional Chamber

Commenter1: Brian A. Kandler

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

Beyond closing regulatory gaps that exist in states lacking a robust solid waste program, 

recommendations that go beyond the “D Prime” option will result in negative economic 

consequences from increased energy prices passed on to businesses and residents, alike, without 

commensurate improvement to the quality of local environmental conditions. We believe that 

environmental regulations should look to maximize the environmental and public health benefit 

from dollars spent on compliance and on Agency staff. In cases where state programs currently 

demonstrate an ability to protect the public, it would be more efficient to consider targeting the 

rule at encouraging other states to catch up. A legislative fix would also likely allow the agency 

to focus more closely on desired integrity standards for CCR storage without the complex 

“domino effect” that comes from a reclassification.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
361

Comment Number: EPA-HQ-RCRA-2009-0640-08244-4

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.1

Comment Excerpt Text:

C. EPA’s CCR Definition Covers A Broad Range Of Combustion And Emissions Control ByProducts With Widely Different Physical And Chemical Compositions That Cannot Be Grouped 

Into One Overarching Class Of Materials To Determine The Hazards Associated With Their 

Disposal

The CCR Rule is unprecedented because it attempts to regulate under RCRA four very different 

combustion by-products produced by coal-fired EGUs, as a single category of waste, without 

making any attempt to evaluate whether such an approach is appropriate based on the available 

data. This approach is erroneous as a matter of law, see Sections III.B and III.E, and is also 

scientifically inappropriate because of differences in the composition of the four different 

combustion byproducts that make up the CCR waste category proposed by EPA. To achieve its 

regulatory objective, the Proposed Rule has to create two new defined terms that had previously 

not been included in either the U.S. Code or the Code of Federal Regulations:

-CCPs means “fly ash, bottom ash, boiler slag, or... [FGD] materials, that are beneficially 

used.”[Footnote 46: 75 Fed. Reg. at 35,130.]

-CCRs means “fly ash, bottom ash, boiler slag, and ... [FGD] materials destined for disposal. 

CCRs are also known as coal combustion wastes (“CCWs”) and fossil fuel combustion (“FFC”) 

wastes, when destined for disposal.”[Footnote 47: Id. at 35,130.]

EME submits that subjecting CCRs to regulation based on these definitions is inappropriate. The 

definitions combine four different materials, which even EPA has acknowledged are produced at 

different stages of the coal combustion process and which have different physical properties, 

structures and in some instances materially different chemical compositions. EPA should have 

evaluated these materials independently and made separate RCRA Subtitle C determinations for 

each. As explained in Section III.B, EME believes that EPA’s guidance and prior precedent 

obligate it to do so–and its failure to do so here is arbitrary and capricious.

The four primary by-products produced by the combustion of coal in most boilers are fly ash, 

bottom ash or boiler slag, and FGD materials for those plants with scrubbers. At the outset, there 

are two factors that should be considered when evaluating whether these materials should be 

lumped together for purposes of regulation under RCRA: (1) the composition of the coal being 

burned; and (2) the structure and characteristics of the different types of CCR.

First, the composition of these materials (particularly the ash-derived materials) are not uniform 

from EGU-to-EGU; they vary based on the type of coal being burned and the type of combustion 

device. As with most fossil fuel resources, the composition of coal varies (particularly its metal 

content), especially if one compares sub-bituminous and bituminous coals. For example, there is 

wide variation in the arsenic levels between the two types of coal – a typical sub-bituminous coal 

has arsenic concentrations of 5.85 mg/kg, while bituminous averages roughly three times more at 

16.2 mg/kg.[Footnote 48: EPRI, Tables of Summary Statistics for TRI Trace Element 

Concentrations in Fuels from the Pisces Database, August 14, 1998. EPA cannot dismiss the 
362

distinction between bituminous and subbituminous coal ash by claiming that it has no control or 

knowledge about what individual plants burn. The Agency recently collected extensive data 

under § 308 of the Clean Air Act from all of the EGUs that would be effected by Utility MACT 

– i.e. every power plant in the country except those under 25 MW. These data included, among 

many other things, certified data regarding the type of fuel burned at a particular plant. Based on 

these data 30-40% of coal-fired EGUs burns exclusively subbituminous coal. As discussed 

further below, there is no basis to conclude that CCRs or fly ash from those facilities constitute 

hazardous waste given their dramatically lower metal content.] The charts in Figure 1 below 

compare the arsenic, cadmium, cobalt and selenium concentrations (i.e., the CCR constituents 

driving EPA’s risk conclusions) in bituminous and subbituminous coals and the fly ash generated 

by burning those coals. These comparisons illustrate the significant differences in metal content 

between the two coals and the combustion by-products they produce.

[See original comment for Figure 1. Comparisons of Arsenic, Cadmium, Cobalt and Selenium 

Concentrations in Subbituminous and Bituminous Coal, and the Resultant Fly Ash]

As these figures amply demonstrate, there are dramatic differences in the metals content of 

bituminous versus subbituminous coal – rendering improper EPA’s grouping of the CCRs 

generated from these two types of coal, given that EPA’s listing decision is predicated on the 

metals content of the CCRs. The metal concentration of coal also varies based on the 

location/characteristics of the location where it was mined.

Second, as explained below, the physical/chemical differences in the structure of the materials 

below impact their potential to leach whatever metals they might contain. These discrepancies 

alone are sufficient to demonstrate the arbitrariness of EPA’s attempt to regulate all CCRs under 

one broad waste category. The individual CCR materials covered by the Proposed Rule and their 

distinguishing features are explained below:

-Fly Ash is comprised of the fine particles that rise with the flue gases and escape an EGU’s 

boiler through the exhaust ducts. Coal-fired EGUs collect fly ash from their exhaust gases using 

electrostatic precipitators or bag houses, with some minimal amount collecting in scrubber 

systems at those plants where such systems are installed. Physically, fly ash is a very fine 

powdery material, composed mostly of silica; however, the characteristics vary depending on the 

inorganic constituents in the coal combusted. Fly ash produced from the combustion of 

bituminous coal typically contains silicon and aluminum with minor amounts of iron, calcium, 

magnesium, sodium, potassium and sulfur. Fly ash produced from sub-bituminous coal 

combustion typically contains silicon, aluminum, and calcium with minor amounts of iron, 

magnesium, sodium, potassium, and sulfur. Nearly all particles are spherical in shape. Fly ash is 

generally light tan in color and consists mostly of silt-sized and clay-sized glassy spheres, giving 

it a consistency similar to talcum powder. One of the primary beneficial reuses for fly ash is in 

the production of cement. The spherical shape and particle size distribution of fly ash also make 

it good mineral filler in hot mix asphalt applications. It also improves the fluidity of flowable fill 

and grout when used for those applications [Footnote 49: EPA, Wastes- Resource ConservationReduce, Reuse, Recycle- Industrial Materials Recycling: Fly Ash, at 

http://www.epa.gov/osw/conserve/rrr/imr/ccps/flyash.htm. The Proposed Rule defines fly ash as 

“very fine globular particles of silica glass which [are] a product of burning finely ground coal in 

a boiler to produce electricity, and [are] removed from the plant exhaust gases by air emission 

control devices.” 75 Fed. Reg. at 35,130.]. Fly ash can be categorized in to two groups depending 

on the type of coal being burned.

-Class C Fly Ash[Footnote 50 :Fly ash classifications are defined by the American Society of 
363

Testing Materials (“ASTM”) and are often specified for fly ash applications such as DOT 

projects.] is produced by burning subbituminous coal. While it is primarily a siliceous material, it 

contains more than 20% lime (CaO) and as a result has natural cementitious properties that cause 

it to harden and gain strength over time when mixed with water at ordinary temperatures without 

any sort of activator being added to the material (i.e., it forms cement-like material all by itself in 

the presence of water). This property makes Class C fly ash particularly useful in cement and 

concrete applications; it is also the reason why EME handles and stores the fly ash dry from its 

Illinois facilities.

-Class F Fly Ash [Footnote 51: Id.] is produced by burning bituminous coal. It is also primarily a 

siliceous material, but it contains less than 20% lime and as a result does not have the same 

natural cementitious properties as Class C fly ash. Class F fly ash will harden if it is mixed with 

an activator such as water and calcium (from another source such as cement, lime or kiln dust). 

While it lacks cementitious properties, Class F fly ash is useful as structural fill and in asphalt 

production because of its uniform size.

For purposes of the Proposed Rule, there are two important differences between Class C and 

Class F fly ash that materially impact their potential to leach metals to groundwater. First, the 

inherent cementitious property of Class C fly ash means that over time as it is exposed to water, 

it hardens and becomes much less porous (i.e., amenable to infiltration), and by extension less 

susceptible to leaching relative to Class F fly ash, which has a lower lime content. Second, Class 

C and Class F ash have dramatically different arsenic (and other metals) content (consistent with 

differences in the underlying coal that produces the ash) – Class C fly ash (produced by burning 

sub-bituminous coal) averages 14.5 mg/kg of arsenic, while Class F fly ash (produced by burning 

bituminous coal) averages more than ten times that amount at 168 mg/kg [Footnote 52: EPRI, 

Tables of Summary Statistics for TRI Trace Element Concentrations in Fuels from the Pisces 

Database, August 14, 1998.]. The charts in Figure 2 below from EPA’s 2009 CCR study 

illustrate the difference in arsenic concentrations between Class C and Class F fly ash as a 

function of pH. (Note: The green line in the Class C fly ash chart can be disregarded as it reflects 

the arsenic concentration of lignite, however, it does illustrate further the differences in the 

metals content of different coal types). The data for other metals is comparable. Since the 

concentrations below are presented on a log scale, the charts in Figure 2 clearly show that the 

concentration of arsenic in Class F fly ash is 1 to 3 orders of magnitude higher than Class C fly 

ash (although even the Class F fly ash samples from the study were below EPA’s levels of 

concern for arsenic – 10 mg/L).

[See original comment for Figure 2. Arsenic concentrations in Class F & Class C fly ash as a 

function of pH[Footnote 53: EPA, Characterization of Coal Combustion Residues from Electric 

Utilities – Leaching and Characterization Data 94, 96 (December 2009) (“Dec. 2009 CCR 

Characterization”).] Class F Fly Ash]

Despite the clear and widely known differences between the physical and chemical 

characteristics of Class C and Class F fly ash that bear directly on their potential to leach metals, 

EPA nevertheless lumped them together in a single waste class. On its face this decision is 

arbitrary and, as explained above, contrary to law.

-Bottom Ash is made up of heavier coal ash particles which, because of the temperature in the 

boiler, agglomerate into larger particles that are too large to be carried in the flue gases, and 

therefore get impinged on the furnace walls and fall to the bottom of the boiler. Bottom ash is 

typically grey to black in color, and resembles coarse sand. It is very coarse, with grain sizes 

spanning from fine sand to fine gravel. As result, bottom ash is well suited to be used as a 
364

replacement for aggregate and is typically well-graded enough in size to avoid the need for 

blending with other fine aggregates to meet gradation requirements [Footnote 54: EPA, WastesResource Conservation- Reduce, Reuse, Recycle- Industrial Materials Recycling: Bottom Ash, at 

http://www.epa.gov/osw/conserve/rrr/imr/ccps/bottomash.htm. The porous surface structure of 

bottom ash particles make this material less durable than conventional aggregates and better 

suited for use in road building as base course and shoulder mixtures or in cold mix applications, 

as opposed to wearing surface mixtures. This porous surface structure also makes this material 

lighter than conventional aggregate and useful in lightweight concrete applications. Id. ¶ The 

Proposed Rule defines bottom ash as a “the agglomerated, angular ash particles, formed in... 

[PC] furnaces that are too large to be carried in the flue gases and collect on the furnace walls or 

fall through open grates to an ash hopper at the bottom of the furnace.” 75 Fed. Reg. at 35,130.]. 

Notably, the arsenic content of bottom ash produced by burning either subbituminous and 

bituminous coal types is in the same range as the arsenic content of Class C subbituminous fly 

ash (i.e., significantly lower than that found in Class F bituminous fly ash). The arsenic content 

of bottom ash ranges from 18 mg/kg for subbituminous bottom ash to 9.03 mg/kg for bituminous 

(see Figure 3 below) [Footnote 55: EPRI, Tables of Summary Statistics for TRI Trace Element 

Concentrations in Fuels from the Pisces Database, August 14, 1998.]. Just as it is unreasonable to 

group Class C and Class F fly ashes together for purposes of regulation under RCRA, it is 

unreasonable to group bottom ash with Class F fly ash for purposes of regulation under RCRA, 

given its much lower arsenic content. It was arbitrary for EPA to assume that bottom ash would 

leach metals to the same extent as fly ash when it has a lower metal content to begin with, and 

therefore there is a hard cap on the total quantity of metals that can be leached from it. It also is 

arbitrary to group bottom ash with Class C fly ash; although they have similar metals content, 

their different physical and chemical properties make the risk profiles of these materials 

insufficiently similar to allow them to be grouped under Subtitle C.

[See original comment for Figure 3. Comparisons of Arsenic, Cadmium, Cobalt and Selenium 

Concentrations Bottom Ash (Bituminous versus Subbituminous)]

-Boiler Slag is a type of bottom ash formed in cyclone-boilers and it only occurs when bottom 

ash is heated up enough that it becomes molten. The slag is formed after that molten material is 

quenched with water. The quenching causes the molten ash to crystallize, fracture and then form 

pellets that are made up of hard, black, angular particles that have a smooth, glassy appearance. 

Boiler slag’s metal content is similar to that of bottom ash, given the way it is formed. Boiler 

slag particles tend to be uniform in size and are resistant to wear. Their permanent black color 

makes them desirable for asphalt applications and for use in the melting of snow. Since the 

number of cyclone boilers in service has decreased, the total quantity of boiler slag generated 

each year has been decreasing [Footnote 56: EPA, Wastes-Resource Conservation-Reduce, 

Reuse, Recycle- Industrial Materials Recycling: Boiler Slag, at 

http://www.epa.gov/osw/conserve/rrr/imr/ccps/boilslag.htm. The Proposed Rule defines boiler 

slag as the molten bottom ash collected... [in] cyclone type furnaces that is quenched with water. 

It is made up of hard, black, angular particles that have a smooth, glassy appearance.” 75 Fed. 

Reg. at 35130.]. Boiler slag, unlike the other ash-derived byproducts, has a crystalline structure 

caused by the rapid cooling of a molten material. This crystalline structure necessarily makes 

slag less susceptible to infiltration, and as a result less likely to leach metals under real world 

conditions. But again, EPA has arbitrarily elected to group it in with the other types of CCRs.

-FGD Materials. Unlike fly ash or bottom ash, FGD materials are not a direct result of the 

combustion process, but rather are produced by a chemical reaction used to reduce sulfur dioxide 
365

in the exhaust gas from a coal-fired boiler. Scrubbers can be either wet or dry and the physical 

characteristics of the materials they produce vary from a wet sludge to a dry powdery material. 

The wet scrubbing process produces a wet sludge that is primarily calcium sulfate using a limebased reagent. Dry scrubbers produce a dry powdered material that is captured in a bag house 

and consists of a mixture of calcium sulfites and calcium sulfates. FGD calcium sulfite can be 

used for embankments and as road base, while FGD calcium sulfate is identical to natural 

gypsum and can be used as a substitute for natural gypsum (which has to be mined) in the 

manufacture of wallboard {Footnote 57: EPA, Wastes-Resource Conservation-Reduce, Reuse, 

Recycle- Industrial Materials Recycling: Flue Gas Desulfurization Material, at 

http://www.epa.gov/osw/conserve/rrr/imr/ccps/fgd.htm. The Proposed Rule defines FGD 

material as “the material produced through a process used to reduce sulfur dioxide (SO2) 

emissions from the exhaust gas system of a coal-fired boiler. The physical nature of these 

materials varies from a wet sludge to a dry powdered material, depending on the process, and 

their composition comprises either sulfites, sulfates or a mixture thereof.” 75 Fed. Reg. at 

35,130.]. Unlike the ash-derived wastes above, the FGD materials, which are the result of a 

chemical reaction, are more chemically pure and do not contain the metals at issue in the 

Proposed Rule in any meaningful quantities. For example, a 2010 EPRI survey showed that the 

typical (10th to 90th percentile) concentrations of FGD Gypsum are lower than that of United 

States average soil, (see Figure 4 below, which also shows a similar trend for bottom ash) 

[Footnote 58: EPRI, Comparison of Coal Combustion Products to Other Common Materials 9-5. 

(November 2010).].

[See original comment for Figure 4. Comparison of Metal Content of Various CCRs (Including 

FGD Materials) versus United States Soils and Other Common Materials]

Therefore, FGD materials effectively have no potential to leach metals in any meaningful 

quantities to groundwater. As a result, it was plainly arbitrary for EPA to propose regulating 

those materials under Subtitle C, especially considering the regulatory/ financial burden that will 

accompany such a listing. Moreover, as the Agency knows, there will be a material increase in 

the quantity of FGD waste generated each year as a result of recently adopted and/or proposed 

regulations under the Clean Air Act which require more EGUs to install scrubbers – an increased 

volume of FGD materials will only compound the burdens on EGUs if the Agency continues to 

pursue a Subtitle C approach.

As demonstrated above, there are readily apparent physical and chemical differences in the 

various substances that make up EPA’s CCR waste class under the Proposed Rules. Yet, EPA 

offers no meaningful justification for why these materials should not be considered separately, 

despite the fact that each of the distinctions identified above have a material impact on the 

potential for these materials to leach metals – which is the basis for EPA’s proposed Subtitle C 

listing.

Moreover, EPA’s apparent unwillingness to consider the CCR materials individually here is 

troubling because of analyses presented in its own risk assessment, where it expressly considered 

CCRs generated by fluidized bed combustion boilers (“FBC”) separately from other CCR 

materials [Footnote 59: EPA, DRAFT Human and Ecological Assessment of Coal Combustion 

Wastes p. ES-1 – ES-2 (April 2010) (“EPA April CCW Assessment”).]. EPA appears to justify 

that choice because the lime injected into the boiler as part of the FBC combustion process 

makes the resultant FBC CCR materials more alkaline (i.e., less likely to leach metals) [Footnote 

60: “CCW porewater constituent data did show that FBC wastes and codisposed ash and coal 

refuse (coal waste from coal crushers and other coal preparation and handling operations) differ 
366

significantly from coal combustion ash in their composition and leachate chemistry, so these 

wastes were addressed separately in the risk analysis. FBC waste chemistry is impacted by the 

limestone injected with coal in FBC units for sulfur capture and tends to be very alkaline with 

high levels of calcium and sulfate.” Id. at A-4 (internal citations omitted).]. However, the same 

rationale should have caused EPA to evaluate FGD materials separately from other CCRs, given 

that they are more alkaline, like the FBC wastes, and generally speaking have much lower metals 

levels, and therefore are much less likely to leach any constituents of concern to groundwater. 

Similarly, EPA should have evaluated Class C fly ash separately from Class F fly ash, especially 

considering the fact that at least one third of EGUs in service today burn exclusively 

subbituminous coal.

In sum, the chemical and physical differences in the CCR materials alone demonstrate that 

EPA’s proposal to regulate all CCRs as one class is arbitrary and capricious. Moreover, EPA 

cannot justify its actions based solely on the fact that many of these waste have historically been 

disposed of together. These materials are generated in different physical areas of a typical EGU, 

and therefore are handled separately, at least initially. That they are not currently disposed of 

separately in some cases is irrelevant for purposes of the Subtitle C analysis, because CCRs are 

not hazardous and can be handled like other solid waste at this time (which status EME believes 

should be retained going forward). Even though some EGU’s comingle their CCRs for disposal, 

if in the future one subset of CCRs were determined to warrant Subtitle C listing, then all EGUs 

would be responsible for segregating the hazardous waste stream from other materials. 

Otherwise the entire comingled waste stream would be treated as hazardous, consistent with 

longstanding EPA rules and policy regarding the mixing of hazardous and non-hazardous waste. 

Therefore comingling cannot be, and never has in practice been, a justification for listing a 

discrete non-hazardous waste as hazardous waste

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. The commenter is further referred to the Response to Comment document 

addressing definitions. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-1

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.6.2 10.4.2 9.2.1

Comment Excerpt Text:

BPU questions: (a) the need and justification for engrafting further federal regulations on the 

current system, and, in particular, the lack of justification for imposing a federally mandated and 

federally enforced scheme; (b) the suggestion that a special waste designation for CCRs under 

subtitle C would not severely impair the currently robust beneficial uses of CCRs: and, (c) 

whether the costs related to any change outweighs the possible benefits of a change. On this 

latter point, BPU is concerned that EPA fails to appreciate the severe economic impact that the 
367

proposed regulations will have on financially-strapped State and local governments as well as on 

businesses. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08248-1

Organization1:Institute for Policy Integrity

Commenter1: Jason A. Schwartz

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

I. EPA Should Consider Costs and Benefits when Determining Whether to Regulate CCRs under 

Subtitle C 

RCRA clearly gives EPA discretion to determine whether regulation of CCRs under Subtitle C is 

“unwarranted.” Given Executive Order 12,866, this determination should include prudent use of 

cost-benefit analysis. The Bevill Regulatory Determinations should be reversed if the net societal 

benefits from regulation under Subtitle C are higher than other regulatory options. 

RCRA Gives EPA Substantial Discretion to Regulate CCRs under Subtitle C 

The statutory authority to regulate CCRs under Subtitle C of RCRA is given by subsection 

3001(b)(3)(C): 

[T]he Administrator shall, after public hearings and opportunity for comment, either determine to 

promulgate regulations under [Subtitle C] for each waste listed in subparagraph (A) [including 

CCRs] of this paragraph or determine that such regulations are unwarranted. The Administrator 

shall publish his determination, which shall be based on information developed or accumulated 

pursuant to such study, public hearings, and comment, in the Federal Register accompanied by 

an explanation and justification of the reasons for it. 

This determination is known as the “Bevill Regulatory Determination.” The relevant information 

that the Administrator must use includes a study mandated by subsection 8002(n): 

The Administrator shall conduct a detailed and comprehensive study and submit a report on the 

adverse effects on human health and the environment, if any, of the disposal and utilization of 

[CCRs]. Such study shall include an analysis of—

(1) the source and volumes of such material generated per year; 

(2) present disposal and utilization practices; 

(3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials; 
368

(4) documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved; 

(5) alternatives to current disposal methods; 

(6) the cost of such alternatives; 

(7) the impact of those alternatives on the use of coal and other natural resources; and 

(8) the current and potential utilization of such materials. 

In furtherance of this study, the Administrator shall, as he deems appropriate, review studies and 

other actions of other Federal and State agencies concerning such material and invite 

participation by other concerned parties, including industry and other Federal and State agencies, 

with a view toward avoiding duplication of effort.... 

These two subsections are the only statutory guidance that EPA is given in making the Bevill 

Regulatory Determination. [Footnote 1: It should be noted that, for example, there is no 

requirement that CCRs meet the statutory or regulatory definitions of “hazardous waste.” The 

directive in subsection 8002(n) of the Resource Conservations and Recovery Act to submit a 

study on the “the adverse effects on human health and the environment” bears some relation to 

part of the statutory definition of “hazardous waste” in subsection 1004(5) (“a solid waste, or 

combination of solid wastes, which because of its quantity, concentration, or physical, chemical, 

or infectious characteristics may—(A) cause, or significantly contribute to an increase in 

mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a 

substantial present or potential hazard to human health or the environment when improperly 

treated, stored, transported, or disposed of, or otherwise managed.”). However, this merely 

confirms that these statutory provisions share the goal of protecting the environment and human 

health. 2 Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 (2009).]

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

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

cost-benefit analysis. [Footnote 2: Entergy Corp. v. Riverkeeper, Inc., 129 S.Ct. 1498, 1509 

(2009).] Entergy more generally supports the proposition that broad statutory language allows 

EPA to weigh the social costs and benefits of regulation unless doing so is directly contrary to 

the statute. 

In this case, the broad statutory mandate is contained in subsection 3001(b)(3)(C). EPA need 

only determine whether or not Subtitle C regulations for CCRs would be “unwarranted.” While 

this determination must be based on all the information accumulated in the course of the required 

study, public hearings, and public comments, Congress mandated several substantive areas of 

consideration in subsection 8002(n). These areas include environmental damage and adverse 

human health effects [Footnote 3: Resource Conservation and Recovery Act §§ 8002(n), (n)(3), 

42 U.S.C. § 6982 (1976) [hereinafter RCRA].] and the cost of alternatives to current disposal 

methods. [Footnote 4: Id. at §§ 8002(n)(5)-(6).] These two factors encompass the health and 

environmental benefits of proposed regulations as well as the costs of the alternative disposals 

that would be mandated by the potential regulations. The other criteria are all areas that would 

need to be analyzed in any reasonable cost-benefit analysis.[Footnote 5: Id. at §§ 8002(n)(1), (2) 

and (8) are all relevant to designing a baseline for a cost-benefit analysis. RCRA § 8002(n)(4) is 

relevant to determining the costs in the baseline. RCRA § 8002(n)(7) contains ancillary costs and 
369

benefits of the rule.] As a result, EPA would be allowed to base its determination under 

subsection 3001(b)(3)(C) on a prudent cost-benefit analysis. 

In the past, EPA has not explicitly interpreted these sections of RCRA in this manner. [Footnote 

6: For example, the 1993 Bevill Regulatory Determination declined to regulate CCRs from coalfired electric utilities under Subtitle C because of "limited risks. . . and the existence of generally 

adequate State and Federal regulatory programs." 58 Fed. Reg. 42,466. Of course, this could be 

reformulated to be a claim about the net benefits of Subtitle C regulation.] But under the 

Supreme Court doctrine established by Chevron v. NRDC, courts will uphold any reasonable 

agency interpretation of an ambiguous term, regardless of whether it is the “best” or “most 

reasonable” interpretation. [Footnote 7: Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 

467 U.S. 837, 843-844 (1984).] So long as the reinterpretation is neither arbitrary nor capricious, 

it is perfectly acceptable for EPA to issue another reasonable interpretation of the relevant 

sections of RCRA. [Footnote 8: See Nat’l Cable & Telecomm. Assoc. v. Brand X Internet 

Servs., 545 U.S. 967 (2005) (explaining that Chevron review applies to agency changes of legal 

interpretations, quoting Chevron, 467 U.S. at 865-66); id. at 981-82 (Rehnquist, J., concurrent in 

part, dissent in part) (explaining that changes in administration are legitimate grounds for 

changing agency interpretations).] 

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

referred to the RIA supporting this rule for a discussion of the costs associated with 

implementation of the rule. Moreover, any comments addressing the proposed subtitle C 

option are outside the scope of this rulemaking. 

Comment Number: EPA-HQ-RCRA-2009-0640-08253-2

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4

Comment Excerpt Text:

2 Current Practices: EPA's proposed rule is based on insufficient and inaccurate information 

about current CCR practices. For example, EPA has not sufficiently researched current CCR 

disposal practices, including the extent to which these materials are being regulated by the states 

today. EPA has also not adequately investigated or considered actions currently underway by 

many states to improve CCR disposal standards. EPA also continues to overestimate the number 

of active CCR management ponds and as a consequence over-estimates both the risk posed by 

these facilities and the benefits of the proposed rules as calculated and discussed in the 

Regulatory Impact Analysis. 

This lack of due diligence appears to have led EPA to a false conclusion that directiy contradicts 

testimony provided by EPA in its 1999 Report to Congress. That report, which was the result of 
370

a much more thoughtful and deliberate review, stated the following regarding CCR management 

practices: 

"Current management practices and trends and existing state and federal authorities appear 

adequate for protection of human health and the envirormaent. State programs increasingly 

require more sophisticated environnmental controls, and tend to focus on utility waste 

management due to the high waste volumes. For example, the frequency of environmental 

inspections at utilities is among the highest of all the major industrial sectors in the United 

States." 

The TVA CCR release at Kingston, TN, indicates that opportunities for improved or increased 

oversight related to structural integrity concerns remain, but it is unclear what role, if any, state 

oversight or lack thereof played in this incident. The results of EPA's nation-wide CCR 

impoundment structural safety and integrity assessments clearly show that the Kingston design 

issue was an anomaly. In fact, of the more than 120 CCR impoundments inspected to date, none 

have received an "unsatisfactory" rating (i.e., no impoundment has been found to present a threat 

of a catastrophic release similar to what occured at the Kingston facility). However, due to the 

Kingston event, sensitivity to this issue is now at an all time high among states and utilities, 

which will lead to increased inspection efforts regardless of any future EPA action.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-7

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1 3.1.2 3.4.1.4.6

Comment Excerpt Text:

The Subtitle C Proposal To Regulate Inactive And / Or Previously Closed Surface 

Impoundments Is Unlawful 

EP A proposes to extend RCRA Subtitle C jurisdiction to previously closed and/or inactive CCR 

surface impoundments (75 Fed. Reg. at 35,177). Even if such impoundments do not receive 

CCRs after the effective date of the rule, EPA would require these impoundments to close in 

compliance with the proposed rule. EPA attempts to tie this requirement to a new theory based 

on "passive leaking;" a theory that the federal cOUli of appeals has struck down in several 

circuits. However, EPA lacks jurisdiction under RCRA over such impoundments, and its attempt 

to retroactively extend regulation over them is arbitrary and capricious because it is inconsistent 

with EPA's prior rulemakings. 

The language ofRCRA contemplates the regulation only of units that operate after the effective 

date of the relevant RCRA rulemaking. EPA itself admitted in 1980 that: 
371

RCRA is written in the present tense and its regulatory scheme is organized in a way which 

seems to contemplate coverage only of those facilities which continue to operate after the 

effective date of the regulations. The [then] Subpmi D standards and [then] Subpmi E permitting

procedures are not directed at inactive facilities. 

43 Fed. Reg. 58,984. Because the statutory language is clear that only operating facilities should 

be subject to what are now the Subtitle C hazardous waste regulatory requirements, EPA's 

proposal to regulate previously closed and inactive impoundments containing CCRs is unlawful. 

EPA also recognized in 1980 that: 

Enormous technical, legal, and economic problems would arise if these standards were to be 

directly applied to inactive facilities [i.e., those facilities which have ceased operating prior to the 

effective date of the Subtitle C regulations] and all such facilities were required to upgrade. Such 

an approach also does not seem equitable because of the enormous difficulty of bringing a closed 

facility into compliance, and because the present owner of land on which an inactive site is 

located might have no connection (other than present ownership of the land) with the prior 

disposal activities. 

Id. For these reasons also, EPA decided in 1980 not to regulate closed or inactive facilities that 

were managing wastes being brought into the Subtitle C management system. 

EP A provides no meaningful justification in its CUlTent proposal for reversing its earlier 

decision not to subject such units to regulation. In 1980, when EPA promulgated the Subtitle C 

rules, the agency decided, based on a multitude of reasons (legal, practical, economic, equitable, 

and technical) that the regulations and permitting would not apply to the thousands of closed and 

inactive surface impoundments in essentially every industry in America. 

Now, in an about-face, EPA reverses course and tries unsuccessfully to justify the retroactive 

nature ofits current proposal by arguing in just a few sentences that the units contain large 

amounts of CCRs and generally refers to the "significant risk" these units impose to justify the 

change in regulatory approach (75 Fed. Reg. at 35,177). EPA's proposal to regulate closed and 

inactive surface impoundments containing CCRs is arbitrary and capricious, and should be 

abandoned in the final rule. 

Response: The Agency is regulating the disposal of CCR under subtitle D of RCRA. The Agency has also 

determined that regulation of inactive CCR surface impoundments as defined in section 257.53 is 

appropriate and necessary as discussed in Unit VI of the preamble supporting this rule. The commenter 

is referred to the applicability section of the preamble for a complete discussion. 

Comment Number: EPA-HQ-RCRA-2009-0640-08840-7

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Category:
372

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. EPA Has Chosen to Ignore the Views of PADEP as Well as Those of Federal and State 

Agencies and Organizations on the Proper Regulatory Mechanism for Managing CCRs

EPGA believes that the Subtitle C option disregards the nearly unanimous views of the federal 

and state agencies, with which the Bevill Amendment directs EPA to consult in reaching a final 

regulatory determination, that Subtitle C regulation is not warranted for CCRs.

In his letter to Matt Hale (4/10/2009), Tom Fidler stated the following:

"DEP understands EPA is considering three options for managing coal combustion waste: as 

hazardous waste under RCRA Subtitle C, as industrial waste under RCRA Subtitle D, or a 

combination of the two. We believe regulation of coal combustion waste as hazardous waste is 

unnecessary, as none of these wastes generated by Pennsylvania power plants has been observed 

to exhibit characteristics of hazardous waste.

In summary, the broad classification and regulation of coal ash as a hazardous waste is not 

supported by science... From our perspective, regulation of coal combustion wastes under 

Subtitle D affords sufficient environmental protection and allows beneficial use opportunities."

In his testimony in Pittsburgh (9/21/2010), Mike Forbeck couldn't have stated PADEP's position 

any more clearly or strongly: "Pennsylvania does not believe that additional regulations for the

management of coal ash beyond RCRA Subtitle D are warranted. Classifying coal combustion 

residues under RCRA Subtitle C would create unnecessary burdens to current management 

practices without producing any greater degree of environmental or public health protection. The 

Commonwealth opposes the rulemaking for Subtitle C and is in support of a Subtitle D proposal 

with implementation authorization with the States."

The Environmental Council of the States ("ECOS") also expressly opposed

EPA's proposed regulation of CCRs under Subtitle C, stating ECOS: [FN 9: ECOS, Revised 

Resolution Number 08-14 (Mar. 23, 2010).]

"Agrees with U.S. EPA's repeated assessments in 1988,1993,1999,2000, and 2005 that CCW 

disposal does not warrant regulation as hazardous wastes under RCRA Subtitle c. .."

And lastly, the Association of State and Territorial Solid Waste Management Officials 

("ASTSWMO") stated in a letter (ASTSWMO to EPA (at pp. 4-5,4/1/2009), the following:

"To artificially classify [coal combustion products (CCB)] as hazardous will needlessly limit the 

management options for both the CCBs and other wastes legitimately classified as hazardous 

which will be competing with CCBs for limited hazardous waste disposal capacity, while not 

producing any great degree of environmental protection. Transportation, manifesting and 

licensing requirements for CCBs as a listed hazardous waste are excessively burdensome without 
373

sufficient evidence of a benefit. It would be more appropriate to regulate and manage CCBs 

using design and operation standards specified for Subtitle D programs except in cases where a 

particular source material is deemed hazardous upon testing for characteristics."

In short, the statute and its legislative history make clear that EPA was to seek the assistance and 

cooperation of federal and state agencies in making a regulatory determination. EPA's selection 

of the Subtitle C option would be directly contrary to the unanimous opinion of these informed 

parties and to Congress' directive that EPA produce a collaborative, informed regulatory option

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08844-10

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2. The D.C. Circuit Has Ruled that the Bevill Amendment Established a One-Time Study, 

Report, and Regulatory Determination Process

In Solite Corp. v. EPA, 952 F. 2d. 473 (D.C. Cir. 1991), NMA argued that future waste streams 

from the mineral processing industry should be eligible for the Bevill study, report and 

Regulatory Determination process before they were subject to Subtitle C regulation. Parallel 

provisions of the Bevill Amendment establish the same study, report and regulatory 

determination process for wastes generated from the extraction, beneficiation, and processing of 

ores and minerals as are established for CCRs. 42 U.S.C. § 6982(p). In Solite, NMA challenged 

EPA's decision that only those mineral processing wastes that were generated between 1983 and 

1988 were eligible for Bevill Amendment coverage, 54 Fed. Reg. at 36,596, and that processing 

wastestreams generated at some future point would therefore be subject to Subtitle C regulation.

In denying NMA's challenge, the D.C. Circuit relied on the explicit language of the Bevill 

Amendment for extraction, beneficiation, and processing wastes, which is virtually identical to 

the Bevill Amendment language for CCRs. The Court stated as follows:

The statutory provision directing EPA to study Bevill wastes suggests by its terms that a onetime study is sufficient. See 42 U.S.C. § 6982(p) ("The Administrator shall conduct a detailed 

and comprehensive study.... [and] shall publish a report of such study.. . .").

Solite, 952 F.2d at 491.

The Court adds that:
374

The way in which the temporary nature of the Bevill Amendment is expressed in the statute also 

lends support to EPA's interpretation [that the Bevill Amendment establishes a one-time Bevill 

process]. See 42 U.S.C. § 6921(b)(3)(A) (Bevill exclusion operative "until at least six months 

after....submission of the applicable study").

Id. Finally, the Court states that:

In any event, this court's holding in EDF II secures EPA's position that a one-time determination 

is sufficient. There we interpreted the Bevill Amendment as an exclusion specifically for "the 

category of wastes designated as 'special wastes[]".... in EPA's 1978 proposed hazardous waste 

regulations." EDF II, 852 F.2d at 1329 (quoting 51 Fed. Reg. 36,234 (1986». While we did not 

go so far as to foreclose Bevill status for a future waste that might satisfy a pre-set criterion, we 

clearly enough rejected the theory that Congress intended the coverage of the Bevill exclusion to 

evolve with time.

Id. The D.C. Circuit has already ruled that the Bevill Amendment creates a onetime Bevill study, 

report and regulatory determination process. Therefore, EPA cannot pursue its proposed Subtitle 

C option.

It is also important to emphasize that EPA-in Solite and during the challenged rulemaking-took a 

position diametrically opposed to the one it espouses today, i.e., EPA then argued that the Bevill 

Amendment established a one-time process. In a notice of proposed rulemaking that was part of 

the regulatory history of the rule challenged in Solite, EPA stated that:

Both the administrative record and Congressional intent clearly indicate that the Bevill 

Amendment was intended to provide a temporary exclusion, pending further study, over a fixed 

time period. Congress directed EPA to conduct a single study of wastes generated by mineral 

mining and processing facilities, because of concern that existing wastes might not be readily 

amenable to Subtitle C controls and might pose relatively low hazard to human health and the 

environment. Moreover, contrary to some commenter's assertions, the statutory language 

includes explicit time limits on the Bevill exclusion, which apply to the submission of the 

required Report to Congress and subsequent regulatory determination.

In addition, EPA believes that making a one-time reinterpretation is not contrary to the interests 

of either industry or the environment. With regard to the concern raised by several commenters 

that the development of new technologies would be stifled, EPA notes that any new wastes 

generated in the future will be regulated under an established regulatory scheme (i.e., either the 

Subtitle C or D program). Therefore, rather than facing regulatory uncertainty and incentives to 

generate large volumes of any new mineral processing wastes, industry will instead have 

substantial knowledge of the regulatory regime that it will face.

54 Fed. Reg. 15,316, 15,338 (April 17, 1989).

In justifying its position that the Bevill amendment created a one-time obligation in Solite, EPA 

then stated to the D.C. Circuit in its Brief for Respondent that:
375

This decision followed from EPA's reading of congressional intent based on the statutory 

language and scheme of sections 3001(b)(3) and 8002(p) of RCRA, which establish a temporary 

exclusion for a fixed period of time and which fail to expressly impose a continuing obligation to 

study new wastestreams. EPA's construction was also based on other indicia, such as the strict 

statutory time periods governing the mineral processing waste exclusion in section 

3001(b)(3)(A) of RCRA. 54 Fed. Reg. at 15,338; 54 Fed. Reg. at 36,956. From this evidence of 

congressional intent, EPA reasonably determined that Congress authorized EPA to make a onetime interpretation or snapshot of mineral processing wastes, rather than a continuing series of 

studies and regulatory determinations....

Brief for the Respondent, Solite Corp. v. EPA, at 68, May 8, 1991 (Final Brief). EPA concluded 

that:

There is nothing in the statute itself which suggests that the Bevill process should be an ongoing, 

evolving process, with updated reports to Congress and regulatory determinations.

Brief for Respondent, Solite Corp. v. EPA, at 69, May 8, 1991 (Final Brief).

EPA should not be allowed to reverse the position it previously took in a parallel Bevill 

rulemaking and before the D.C. Circuit. For this reason also, EPA's Subtitle C option cannot 

move forward

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08844-11

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:

B. Even if EPA was Authorized to Reverse its 1993 and 2000 Regulatory Determinations, EPA 

has Failed to Comply with the Statutorily-Mandated Bevill Process

In the proposed rule, EPA states that it "is reevaluating its August 1993 and May 2000 Bevill 

Regulatory Determinations regarding CCRs generated at electric utilities and independent power 

producers." 75 Fed. Reg. at 35,148. Even if EPA had the authority to reverse its August 1993 and 
376

May 2000 Bevill Regulatory Determinations, which it does not as demonstrated above, EPA has 

failed to go through the Bevill process before proposing a reversal of the Bevill Regulatory 

Determinations, and therefore cannot proceed with its Subtitle C option.

As stated above, the Bevill process as established by Congress must include each of the 

following steps:

1) EPA must study CCRs pursuant to the eight study factors;

2) EPA must then submit a Report to Congress, i.e., a report on such study and the findings of 

the study to the House Committee on Energy and Commerce and the Senate Committee on 

Environment and Public Works; and

3) Following submission of the Report to Congress to the enumerated congressional committees, 

EPA must conduct public hearings and provide an opportunity for comment on the Report, and 

then either determine to promulgate regulations under Subtitle C or determine that such 

regulations are not warranted.

4) If EPA determined that such regulations were warranted, then engage in a notice and comment 

regulation to promulgate the regulations. 

EPA has failed to comply with this special Bevill process. First, its purported analysis of the 

eight Bevill study factors as applied to CCRs is insufficient and superficial. Among other things, 

EPA is explicitly required to evaluate the "costs of alternatives" to current disposal methods. 

EPA's evaluation of the costs to the industry of the Subtitle C options in the proposed rule is 

woefully lacking in scope and depth.

Moreover, EPA has not even attempted to argue that it has met the Report to Congress prong of 

the Bevill process. Prior to EPA's proposal to reverse its 1993 and 2000 Regulatory 

Determinations and adopt a Subtitle C approach for CCRs, EPA has not prepared a Report and 

did not submit a Report to the enumerated Congressional committees before proposing to reverse 

its Regulatory Determinations in the proposed rule.

In addition, EPA's proposal to reverse its 1993 and 2000 Regulatory Determinations is not based, 

as explicitly required by statute, on public hearings and public comment on the non-existent 

Report to Congress. Therefore, EPA has not met its statutory obligation which conditions any 

Regulatory Determination on an evaluation of the results of such public hearings and any 

comments on the Report to Congress. See EDF, 852 F. 2d. at 1314. ("The statute clearly states 

that the agency is to base its regulatory determinations on the information gathered for the § 

8002(p) [the extraction, beneficiation and processing waste] study").

The legislative history supports this reading. Representative Bevill, the sponsor of the statutory 

amendment that bears his name, stated explicitly that any EPA regulatory determination would 
377

be based in part on the public hearings and any comments that were submitted on the Report to 

Congress. "Finally, let me direct the House's attention to the fact that after EPA concludes these 

studies, it will be required to obtain public views on them and to make known whether as a result 

of this process EPA believes any regulation of these materials is necessary." 126 Congo Rec. at 

3362.

Finally, EPA's proposed rule envisions a decision-making process involving the simultaneous 

reversal of the prior Regulatory Determination for CCRs, the issuance of a new regulatory 

determination for CCRs, and the adoption of new Subtitle C regulations for CCRs. This 

accelerated approach violates the sequential nature of the Bevill process established by Congress, 

which provided for a regulatory determination to be followed at a later time by subsequent 

issuance of regulations.

To the extent EPA is authorized to reverse its 1993 and 2000 Regulatory Determinations, it 

cannot do so without complying with the statutorily mandated Bevill process. EPA's failure to do 

so prevents it from proceeding with the Subtitle C option.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-08844-9

Organization1:National Mining Association (NMA)

Commenter1: Tawny A. Bridgeford

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4

Comment Excerpt Text:

II. EPA'S REEXAMINATION OF THE BEVILL STATUS OF WASTES FROM THE 

COMBUSTION OF FOSSIL FUELS

A. EPA Lacks the Authority to Reverse its 1993 and 2000 Bevill Regulatory Determinations 

Regarding CCRs

EPA proposes two alternative regulatory approaches for the regulation of CCRs. The so-called 

Subtitle C option would require EPA to reverse its prior August 1993 and May 2000 Regulatory 

Determinations for CCRs. It is clear from RCRA, relevant case law, and EPA's prior positions in 

Bevill cases that EPA lacks the authority to reverse its August 1993 and May 2000 Bevill 

Regulatory Determinations regarding CCRs.
378

1. The Bevill Amendment Establishes a One-Time Special Process For Making Bevill 

Regulatory Determinations

Congress enacted RCRA in 1976. Subtitle C of RCRA, 42 U.S.C. §§ 6921-6931, generally 

established a "cradle to grave" management scheme governing the generation, transportation, 

treatment, storage and disposal of the hazardous wastes that would be subject to this stringent 

RCRA Subtitle C program.

On December 18, 1978, EPA proposed regulations identifying hazardous waste under RCRA 

Subtitle C. 43 Fed. Reg. 58,946 (Dec. 18, 1978). EPA proposed to regulate wastes from fossil 

fuel combustion, including CCRs, as well as certain other wastes, as "special wastes." 43 Fed. 

Reg. at 59,015. The EPA 1978 proposal explained that special wastes would be subject to fewer 

regulatory requirements because they were generated in "very large volumes," "posed relatively 

low" risks, and "were not amendable [sic] to the control techniques" proposed for hazardous 

waste treatment, storage and disposal. 43 Fed. Reg. at 58,992.

EPA abandoned the special waste concept, however, when the agency promulgated final 

hazardous waste regulations in 1980. 45 Fed. Reg. 33,084 (May 19, 1980). Thus, EPA's final 

rule, which was scheduled to take effect on November 19, 1980, would have treated CCRs as 

any other waste, subject to the full requirements of the final RCRA Subtitle C regulations.

Recognizing the absurdity of regulating CCRs and other special wastes in such an inflexible, 

onerous manner, Congress stepped in before the effective date of the final Subtitle C regulations 

and provided relief in October 1980 with the Bevill Amendment. See 42 U.S.C. §§ 

6921(b)(3)(A), (c)6982(n). As a counterpoint to EPA's prior actions described above, the Bevill 

Amendment established a special process which EPA was required to follow before CCRs and 

the other special wastes could be regulated as hazardous wastes under Subtitle C of RCRA. See 

also, Environmental Defense Fund v. EPA, 852 F.2d 1309, 1314 (D.C. Cir. 1988) (EDF) 

("Indeed, our reading of the statute and legislative history strongly suggests that Congress 

designed the Bevill Amendment to break with the previous approach to regulation of hazardous 

industrial wastes.").

First, the Bevill Amendment established a temporary exemption from regulation under Subtitle 

C, until the completion of the study and submittal of the report described below. 42 U.S.C. § 

6921(b)(3)(A). Congress directed EPA to conduct a "detailed and comprehensive study" on the 

adverse effects on human health and the environment of CCRs and other special wastes. 42 

U.S.c. § 6982(n). In contrast to the manner in which EPA otherwise was going to decide how to 

determine if wastes were hazardous and subject to Subtitle C under the regulations that were to 

become effective on November 19, 1980, Congress expressly directed that the Bevill study 

include an analysis of:

1) the source and volumes of CCRs generated per year;

2) present disposal and utilization practices;
379

3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials;

4) documented cases in which danger to human health or the environment from surface runoff or 

leachate has been proved;

5) alternatives to current disposal methods;

6) the costs of such alternatives;

7) the impact of those alternatives on the use of coal and other material resources; and

8) the current and potential utilization of such materials.

Third, Congress directed that EPA publish a report on such study, which was to include 

"appropriate findings," not later than 24 months after October 21, 1980. [d. The Bevill Report 

was to be submitted to the Committee on Environment and Public Works of the United States 

Senate and the Committee on Energy and Commerce of the United States House of 

Representatives. [d.

Fourth, the Bevill Amendment further stipulated that within six months after the Report to 

Congress, EPA, after public hearings and the opportunity for comment, had to determine whether 

to promulgate regulations under Subtitle C for CCRs, or determine that such regulations were 

unwarranted. 42 U.S.C. § 6921(b)(3)(C). Finally, if EPA determined that such regulations were 

warranted, EPA could then engage in notice and comment rulemaking to promulgate the Subtitle 

C regulations. See American Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 

1996) ("Section 3001(b)(3)(C) provides that the product of the notice and comment process [on 

the Report to Congress] will be a determination of whether regulation is warranted in the future, 

not regulations themselves.")

EPA failed to meet the Bevill Amendment's statutory deadline of October 21, 1980, for 

publication of a Report to Congress on fossil fuel combustion wastes. In Gearhart v. Reilly, No. 

91-2435 (D. D.C. June 30, 1992), EPA entered into a Consent Decree which divided fossil fuel 

combustion wastes into two categories, and agreed to follow the Bevill process separately for the 

two categories. EPA had actually published its First Report to Congress on fossil fuel 

combustion wastes from coal fired utilities on March 8, 1988. 53 Fed. Reg. 9976 (Mar. 28, 

1988). On August 9, 1993, EPA issued a regulatory determination that regulation of four large 

volume fossil fuel combustion wastes from coal fired utilities (fly ash, bottom ash, boiler slag, 

and flue gas desulfurization waste) as hazardous is "unwarranted" under RCRA Subtitle C. 58 

Fed. Reg. 42,466.

In the second phase of the Bevill utility industry process, EPA addressed issues of comanagement, ash derived from co-burning of coal from non-hazardous solid waste, ash derived 

from clean coal combustion, and combustion residues from burning oil and natural gas. EPA 

submitted its second utility Report to Congress on March 31, 1999. 64 Fed. Reg. 22,820 (April 

28, 1999). On April 25, 2000, EPA issued its Phase II Regulatory Determination. 65 Fed. Reg. 
380

32,214 (May 22, 2000). EPA concluded in the Phase II Bevill Regulatory Determination that 

hazardous waste regulation under Subtitle C for the remaining fossil fuel combustion wastes 

"[was] not warranted." 65 Fed. Reg. at 32,215. EPA reserved the right to revise this 

determination. See Id. at 32,215 & 32,218.

An analysis of the Bevill Amendment reveals that the above-described special Bevill process 

established by Congress provided for a one-time evaluation of CCRs and the other special wastes 

that cannot be subsequently reversed. First, the Bevill Amendment by its terms calls for a 

"study" and a "report." 42 U.S.C. §§ 6982(n). The use of the singular, as well as the statutory 

context, means that Congress deliberately established a one-time study and one-time Report to 

Congress obligation. Similarly, Congress called for a one-time regulatory determination when it 

stated that "not later than six months after the date of submission of the applicable study" EPA 

should "either determine to promulgate regulations ... or determine that such regulations are 

unwarranted." 42 U.S.C. § 6921(b)(3)(C).

Second, Congress made it clear it was establishing a one-time study, report and regulatory 

determination obligation when it required that the report and study be completed by a date 

certain, i.e., October 21, 1980. 42 U.S.C. § 6982(n). Finally, the Bevill Amendment established a 

temporary exemption from RCRA Subtitle C regulation for the special wastes, an approach 

consistent with a one-time study, report, and regulatory determination. 42 U.S.C. § 

6921(b)(3)(A). If Congress had intended to extend the Bevill process thirty years beyond the 

1980 date Congress established for completion of the Bevill study and report, Congress would 

have done so explicitly. That Congress did not do so, further confirms that it intended that the 

Bevill process consist of a one-time report, study, and regulatory determination for CCRs.

Accordingly, with the issuance of the 2000 Regulatory Determination, the Bevill process for 

fossil fuel combustion wastes, including CCRs, was completed. For all the above reasons, the 

Bevill Amendment established a one-time study, report, and regulatory determination for CCRs. 

Accordingly, EPA lacks the authority to reverse its 1993 and 2000 Regulatory Determinations. 

Any attempt by EPA to do so in the final rule would be unlawful

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-5

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
381

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2 3.1.2

Comment Excerpt Text:

It recommends that rather than subjecting CCRs to regulatory overkill under Subtitle C or a 

Subtitle D regulatory program that fails to reflect existing state programs, that EPA request 

specific legislative authorization to develop federally enforceable regulations. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09426-1

Organization1:Wisconsin Public Service

Commenter1: Connie K. Lawniczak

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

The Bevill Amendment to RCRA, §3001(b)(3)(A)(i-iii), is the controlling legal framework by 

which each of the regulatory options set forth in the current proposal must be evaluated. The 

Bevill Amendment establishes the statutory process by which Congress directed EPA to make a 

determination regarding whether CCRs warrant regulation under RCRA’s Subtitle C hazardous 

waste program. Following years of study, EPA completed the statutorily-mandated Bevill 

determination process for CCRs on May 22, 2000, concluding, based on two earlier Reports to 

Congress, that CCRs do not warrant regulation under RCRA’s Subtitle C hazardous waste 

regulations. See 65 Fed. Reg. 32214 (May 22, 2000). Instead, EPA determined that regulation of 

CCRs as non-hazardous waste under Subtitle D of RCRA would be fully effective in protecting 

human health and the environment.

The Subtitle C option would constitute a reversal of EPA’s final 2000 Regulatory Determination 

that CCRs do not warrant hazardous waste regulation and would be in direct contravention of 

RCRA’s plain language establishing an unambiguous statutory process by which EPA can 

determine whether and how to regulate CCRs under RCRA. Having completed the Bevill 

determination process for CCRs in 2000 pursuant to the statutorily prescribed procedures, EPA is 

not at liberty to undo that process. Even assuming that the statute did allow EPA to make a new 

determination more than ten years after completing the Bevill process, EPA would at a minimum 

be obligated to adhere to the statutory procedures that Congress prescribed for making the 

original regulatory determination, including providing a Report to Congress setting forth its 

recommendation. EPA has ignored these procedures in the Subtitle C proposal.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 
382

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-09631-1

Organization1:Porter Wright Morris & Arthur LLP

Commenter1:Christopher R. Schaff

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

USEPA's proposal to regulate coal combustion residuals appears to be a misguided effort to 

indirectly discourage the continued generation of electricity in coal-fired units. USEPA's attempt 

to dictate energy use policies, for which it has not been given Congressional (or other) 

authorization, interjects unnecessary confusion between the question of the environmental 

consequences of coal combustion residuals handling, and the broader policy question of the 

degree to which coal should be utilized as an energy source in this country. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09633-10

Organization1:Waterkeeper Alliance

Commenter1:Scott Edwards

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. EPA Has Been Improperly Influenced By Industry And OMB 

According to documents obtained by Public Employees for Environmental Responsibility 

(PEER) under the Freedom of Information Act, EPA has long been clearing its draft reports and 

fact-sheets on the uses and dangers of coal ash with coal industry representatives. [Footnote 45: 

PEER website, News Releases, Coal Ash Industry Allowed to Edit EPA Reports, January 27, 

2010, available at: http://www.peer.org/news/news_id.php?row_id=1297] Beyond merely 

soliciting comments from industry, EPA has gone so far as to allow industry lobbyists to edit 

many of these publications. Examples of such influence include: deletion of a reference to 

foundry sands as “high risk” from an EPA presentation; [Footnote 46: Email from John Sager, 

EPA to Elizabeth Olenbush, Foundry Industry Recycling Starts Today (FIRST), October 30, 

2003, available at: http://www.peer.org/docs/epa/1_27_10_EPA_PowerPoint_altered.pdf] an 
383

agreement to deemphasize cautionary language about FGD gypsum and discussing how to spin 

100 percent increases of mercury concentration in FGD material; [Footnote 47: Email from Dave 

Goss, American Coal Ash Association (ACAA) to John Sager, EPA, June 29, 2007, available at: 

http://www.peer.org/docs/epa/1_27_10_Cautionary_for_Exclamation_Point.pdf] and a 

suggestion by an American Coal Ash Association representative that EPA join together with 

industry to change certain state regulations on industrial recycling that may be “hindering 

progress.” [Footnote 48: Email from Dave Goss, American Coal Ash Association (ACAA) to 

Anthony Carrell, EPA, June 22, 2007, available at: 

http://www.peer.org/docs/epa/1_27_10_Industry_edits_on_EPA_Report_to_Congress.pdf] 

While one might hope, in this new administration, that such cozy relationships between 

government and industry lobbyists no longer exist, activity surrounding EPA’s proposed rule on 

coal ash suggests that the influence of special interests is not quite a thing of the past. 

The proposed rule on coal ash that was originally submitted by EPA to the Office of 

Management and Budget (OMB) in October 2009 had only one option--to label coal ash as a 

hazardous waste and regulate it under Subtitle C of RCRA. [Footnote 49: “EPA Backed Off 

‘Hazardous’ Label for Coal Ash After White House Review,” by Patrick Reis, New York Times, 

May 7, 2010, available at: http://www.nytimes.com/gwire/2010/05/07/07greenwire-epa-backedoff-hazardous-label-forcoal-ash-af-10431.html] At the time, EPA explained its reasoning in no 

uncertain terms: 

EPA said then that compliance with the hazardous-waste regulations would be more expensive 

but that costs would be outweighed by health and environmental benefits. EPA wrote then that 

“maintaining a [nonhazardous] approach would not be protective of human health and the 

environment. [Footnote 50: “EPA Backed Off ‘Hazardous’ Label for Coal Ash After White 

House Review,” by Patrick Reis, New York Times, May 7, 2010, available at: 

http://www.nytimes.com/gwire/2010/05/07/07greenwire-epa-backed-off-hazardous-labelforcoal-ash-af-10431.html] (emphasis added) 

While Administrator Jackson submitted the proposed rule with a view to issuing a decision by 

the end of the year, by December EPA stated that the decision would be delayed. [Footnote 51: 

“White House, EPA at Odds Over Coal-Waste Rules,” by Neil King Jr. and Rebecca Smith, Wall 

Street Journal, page A6, January 9, 2010, available at: 

http://online.wsj.com/article/SB126300256672322625.html] What had occurred in the interim 

were some 20 meetings between coal industry representatives and OMB on the potential impact 

of the rule, meetings that took place before the rule had even been published and open to 

comment from the public. [Footnote 52: “White House, EPA at Odds Over Coal-Waste Rules,” 

by Neil King Jr. and Rebecca Smith, Wall Street Journal, page A6, January 9, 2010, available at: 

http://online.wsj.com/article/SB126300256672322625.html] Significantly, industry groups 

continued to hold meetings with OMB through April 2010 (the current proposed rule being 

published on May 4, 2010), bringing the grand total to at least 33, and all before the formal 

rulemaking process had begun. [Footnote 53: “Coal Lobbyists Wooed White House Staff to 

Influence Coal Ash Regulations Long Before Public Hearings,” by Brendan DeMelle, October 

27, 2010, available at: http://www.huffingtonpost.com/brendan-demelle/coal-lobbyists-wooedwhit_b_774938.html] Meanwhile, during this same period of time OMB met with environmental 

groups a mere 12 times. [Footnote 54: “EPA Backed Off ‘Hazardous’ Label for Coal Ash After 
384

White House Review,” by Patrick Reis, New York Times, May 7, 2010, available at: 

http://www.nytimes.com/gwire/2010/05/07/07greenwire-epa-backed-off-hazardous-labelforcoal-ash-af-10431.html] When EPA’s proposed rule on coal ash was finally published it 

differed drastically from the original in that it now includes an alternative proposal that is much 

friendlier and less costly to industry. [Footnote 55: EPA Proposed Rule] 

It is clear that the alternative proposal to manage coal ash under Subtitle D arose as a result of 

the coal industry and OMB exerting formidable influence over EPA rulemaking. Barring the 

possibility that within the space of six months coal ash suddenly became non-toxic, this is, 

indeed, the only plausible explanation. EPA’s mission is to protect human health and the 

environment; [Footnote 56: EPA website, Our Mission and What We Do, available at: 

http://www.epa.gov/aboutepa/whatwedo.html] it is not to compromise public health in order to 

make the pill of regulation easier for industry to swallow. Given EPA’s findings on the 

hazardousness of coal ash, it would be an abdication of this mission and of its responsibility to 

the public to regulate coal ash under anything other than Subtitle C. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09634-9

Organization1:Earth Justice, et. al. (prepared for Sierra Club, Earthjustice, Natural Resources 

Defense Council)

Commenter1:Richard C. Fortuna

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.7

Comment Excerpt Text:

E. “Stigma” Under RCRA Is Illegal 

In 1986 EPA issued a final decision not to list recycled oil as hazardous waste because the 

stigmatic effect of such a listing would discourage recycling.[Footnote 56: 51 FR 41900 

(November 18, 1986), Used Oil Listing; Final Rule.] Despite its own report indicating that 

certain types of used oil should be listed as hazardous waste because of various toxic 

constituents, EPA failed to act on its own determinations. As a result in the 1984 HSWA, 

Congress adopted Sections 241-242 requiring EPA to decide within a specified time whether to 

list used oils as hazardous. 

EPA’s decision not to list used oil because of “stigma” was challenged by The Hazardous Waste 

Treatment Council (HWTC),[Footnote 57: I was the Executive Director of the HWTC at the 

time.] petroleum refining organizations and the Natural Resources Defense Council. In its 

opinion, the Court ruled unanimously, stating tersely that: 

The EPA erroneously based its decision not to list recycled oils as hazardous waste on the 

stigmatic effects of such a listing, a factor not permitted by the statute.[Footnote 58: 861 F.2d 
385

270 (D.C. Cir. 1988), Hazardous Waste Treatment Council v. EPA (HWTC I). Used Oil 

Recycling Litigation.]

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09712-11

Organization1:Basin Electric Power Cooperative (BEPC)

Commenter1: Claire M. Olson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA's proposed Subtitle C Option is arbitrary and capricious, an abuse of discretion, and 

otherwise not in accordance with the law; therefore, a reviewing court is likely to find invalid 

any EPA Rule applying Subtitle C regulation to Bevill Amendment wastes 

The Administrative Procedure Act empowers courts to review "agency action,findings, and 

conclusions" if they are "arbitrary and capricious, an abuse of discrection, or otherwise not in 

accordance with law."28 Before taking an agency action, such as rule making, the agency is 

required to "examine the relevant data and articulate a satisfactory explanation for its action 

including a rational connection between the facts found and the choices made."29 The court must 

then review that explanation and evaluate "whether the decision was based on a consideration of 

the relevant factors and whether there has been a clear error of judgment."30 

In this case, EPA's action, in proposing a final rule that is contrary to its earlier final 

determination regarding the Bevill Wastes in its Report to Congress, is, first of all,"not in 

accordance with law." The Bevill Amendment directed the EPA to complete a study considering 

all the listed factors equally and then make a single determination whether the CCRs should be 

regulated under Subtitle C. Once EPA made thisdetermination, it had no authority to institute a 

notice of proposed rulemaking, and areviewing court is likely to rule against the EPA. 

Because the Bevill Amendment was specific and limited in what it authorized the EPA to do and 

regarding Congress' reasons for doing it the way it did, the EPA'sproposed rule is not in 

accordance with the law and is an abuse of the EPA's discretion. 

Additionally, EPA's proposed rule is arbitrary and capricious because EPA has failed entirely to 

consider important aspects of the problem. EPA is relying on factors in a way in which Congress 

has not intended it to consider them, and the EPA has offered an explanation for its decision that 

runs counter to the evidence before the agency . Forexample, EPA's proposed rule 1) is 

inconsistent with the Bevill Amendment's directive that any final determination not impair CCR 

beneficial use, 2) is at odds with Congress's [footnotes: 28 5 U.S.C. 706(2)(A). 29 Motor Vehicle 

Mfrs. Assn ofthe U.S. v. State Farm Mut Auto. Ins. Co., 463 U.S. 29, 43,103 S.Ct.2856, 77 

L.Ed.2d 443 (1983). 30 Id.] express directive that any regulatory program for CCRs not 
386

discourage the use of coal by imposing undue regulatory costs on the management of CCRs, 3) 

disregards the nearly unanimous views of the federal and state agencies, with which the Bevill 

Amendment directs EPA to consult in reaching a final regulatory determination, that Subtitle C 

regulation is not warranted for CCRs, and 4) is inconsistent with EPA's own findings that state 

programs can properly address CCR disposal practices under RCRA Subtitle D, and 

inappropriately includes potential damage cases in its evaluation of the appropriate regulatory 

option for CCRs when the Bevill Amendment directs the Agency to evaluate only those 

instances where such danger has been proved when considering the "documented cases" of 

danger from the managementof CCRs. 

Further, EPA's prior determination "recognized that coal combustion wastes rarely exceed the 

RCRA characteristics for hazardous waste, and therefore, that most coal combustion wastes 

would not be subject to Subtitle C controls unless they were listed as hazardous wastes.,,31 In 

this rulemaking, EPA has indicated that "[t]hisdecision is driven in part by the failure of a 

surface impoundment retaining wall in Kingston, TN in December 2009."32 The failure of the 

surface impoundment is a dam safety issue, not a hazardous waste issue, so it is arbitrary and 

capricious to warrant reclassification of CCRs as a hazardous waste based on reasons and 

justificationsrelated to the failure of a surface impoundment. 

Because the EPA has relied on factors which Congress has not intended it to consider, entirely 

failed to consider important aspects of the problem, and offered explanations for its decision that 

run counter to the evidence before the EPA, an EPA final rule under which Bevill Wastes are 

regulated under Subtitle C would be arbitraryand capricious.33 3158 Fed. Reg. at 42477.32 75 

Fed. Reg. at 35132.33 Motor Vehicle Mfrs. Ass'n ofthe U.S. v. State Farm Mut. Auto. Ins. Co., 

463 U.S . 29, 43 (1983).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09713-8

Organization1:Indianapolis Power & Light Company (IPL)

Commenter1: Dana G. Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Bevill Amendment directs EPAto examine the "[a]ction taken by other governmental 

agencies or regulatory programs based on the health or environmental hazard posed by the waste 

or waste constituents." 40 C.F.R. 261.11(a)(3)(x). Here, EPA has failed to give any meaningful 

consideration to the actions taken by other governmental agencies or regulatory programs for 

regulating CCRs, including most notably state regulatory programs. Indeed, EPA does not 

reference a single state regulatory program already in place for CCRs. EPA's failure to fully 

recognize the federal or state regulatory controls that are already in place for CCRs renders 
387

EPA's proposed listing for CCRs defective. EPA itself documented in the final 2000 Regulatory 

Determination the growing effectiveness of state regulatory programs for CCRs, concluding that 

"with the exception of relatively few states, the regulatory infrastructure is generally in place at 

the state level to ensure adequate management of these wastes." 65 Fed. Reg. at 32217.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-12

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

b. The EPA has not provided Congress with a determination report prior to rulemaking which 

outlines the science in regulating CCR as hazardous. A Bevill reversal would be improper and 

exceed the EPA's statutory authority.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-09728-14

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

d. The EPA has failed to convene required meetings and hearings with affected parties as 

required by law.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 
388

Comment Number: EPA-HQ-RCRA-2009-0640-09884-9

Organization1:Luminant

Commenter1: Shawn Glacken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. EPA Should Follow its Previous Determinations and is Statutorily Required to Consider the 

Opinions of State and Federal Agencies

On two separate occasions, most recently in 2000, EPA made a final regulatory determination 

concluding that Subtitle C of RCRA is not the appropriate regulatory regime for regulating CCR 

and that regulation as non-hazardous waste by the states is the appropriate option for ensuring 

the safe management of these materials whi Ie preserving reuse. Virtually every federal and state 

agency that has expressed its views is opposed to the Subtitle C option. This is important since 

the Bevill Amendment requires that the views of these agencies be considered by EPA prior to 

the issuance of any final regulatory determination for CCR. EPA's disregard of this input is 

inconsistent with the statute

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-10

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle C option is inconsistent with the views of other federal and state agencies that EPA 

was to consult with in reaching a Final regulatory determination

EPA’s proposed Subtitle C option is opposed by virtually every federal and state agency that has 

weighed in on this rulemaking. This broad opposition to the Subtitle C option is significant 

because the Bevill amendment and its legislative history make clear that the informed views of 

these agencies were to be considered by EPA in the issuance of any final regulatory 
389

determination for CCRs. Given this across-the-board opposition to the Subtitle C option by the 

groups Congress directed EPA to consult with as part of the decision-making process for CCRs, 

selection of the Subtitle C option would be inconsistent with the statute.

The statute specifically directs that EPA, in preparing its study on CCRs, “shall, as [the 

Administrator] deems appropriate, review studies and other actions of other Federal and State 

agencies concerning such material and invite participation by other concerned parties, including 

industry and other Federal and State agencies, with a view toward avoiding duplication of 

effort.” Representative Bevill elaborated on this collaborative process by emphasizing that 

“EPA’s studies should not proceed in a vacuum,” but rather that EPA was to reach out to those 

with expertise in the field.

The Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) 

expressly rejected EPA’s proposed regulation of CCRs under Subtitle C: To artificially classify 

[coal combustion byproducts (CCB)] as hazardous will needlessly limit the management options 

for both the CCBs and other wastes legitimately classified as hazardous which will be competing 

with CCBs for limited hazardous waste disposal capacity, while not producing any great degree 

of environmental protection. Transportation, manifesting and licensing requirements for CCBs as 

a listed hazardous waste are excessively burdensome without sufficient evidence of a benefit. It 

would be more appropriate to regulate and manage CCBs using design and operation standards 

specified for Subtitle D programs except in cases where a particular source material is deemed 

hazardous upon testing for characteristics.

The most compelling reason not to impose Subtitle C regulations is that the beneficial use of 

CCB has been very successful. The “hazardous” label of Subtitle RCRA Subtitle C has the 

potential to put an end to many beneficial uses for CCB. In short, the statute and its legislative 

history make clear that that EPA was to “seek the assistance and cooperation of those most 

expert in this field” in making a final regulatory determination. EPA’s selection of the Subtitle C 

option would be directly contrary to the unanimous opinion of these informed parties and to 

Congress’ directive that EPA produce a “collaborative, informed” regulatory determination for 

CCRs

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-3

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
390

Comment Excerpt Text:

EPA may not reverse its final regulatory determinations that CCRs do not warrant regulation 

under RCRA Subtitle C

The fundamental flaw in the proposed Subtitle C option is that it is premised on the notion that 

EPA is at liberty to reverse its final Regulatory Determinations that CCRs do not warrant 

regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse 

these final Regulatory Determinations, EPA may not adopt the Subtitle C hazardous waste option 

for CCRs. Even assuming for purposes of argument that the statute did authorize such reversal, 

EPA’s proposal to regulate CCRs under Subtitle C does not comply with the Bevill amendment’s 

statutorily-prescribed decisionmaking process. While Administration and EPA policies may have 

changed over the last two years, the law governing the decision-making process by which EPA 

may choose to regulate CCRs under RCRA has not. Congress established a detailed process by 

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

completed the Bevill process pursuant to a judicially-imposed deadline and determined, in 

accordance with the congressionally-mandated, decision-making process, that CCRs do not 

warrant regulation under Subtitle C and but do warrant regulation under Subtitle D. The statutory 

decision-making process is complete, and RCRA does not authorize EPA to reverse its final 

CCR Regulatory Determinations in a manner of its own choosing.

The statute also does not authorize EPA to redo or reverse a final regulatory determination that 

the Agency has already properly reached pursuant to the amendment’s statutorily prescribed 

procedures and deadlines, or to undertake another round of Bevill decision-making for CCRs. If 

it did, the statutory process and its associated deadlines for reaching a final Regulatory 

Determination would have no meaning, and EPA could continually change its mind in an 

abbreviated fashion, as illustrated by the proposed Subtitle C option. If Congress had wanted to 

give EPA this authority, it would have done so explicitly. Its absence means that EPA does not 

have the authority to undertake, through a process and timing of its own choosing, a second 

regulatory determination.

The statute contemplates only a one-time decision, directing EPA to determine, after the 

statutorily-required reports to Congress on CCRs, whether Subtitle C regulation for CCRs is 

warranted. EPA completed this statutorily-prescribed process for CCRs over ten years ago, 

concluding for a multitude of reasons that CCRs do not warrant regulation under RCRA Subtitle 

C. The statute simply does not empower EPA to revisit its final decision and render a new 

determination

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 
391

Comment Number: EPA-HQ-RCRA-2009-0640-09885-4

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.5

Comment Excerpt Text:

EPA has failed to adhere to the Bevill amendment’s prescribed process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory 

Determination for CCRs, the agency would have to adhere to the statutorily prescribed 

procedures that Congress demanded EPA follow in determining whether and how to regulate 

CCRs. EPA has strayed beyond the plain language of the statute by proposing to reverse its final 

Regulatory Determinations for CCRs without following the statutorily-required process it 

followed for issuing those determinations in the first instance. The agency’s proposed Subtitle C 

option does not comport with the process that Congress demanded EPA adhere to in determining 

whether and how to regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct 

thorough studies demonstrating a clear need for regulation; provide Congress a report detailing 

its findings on those studies; conduct public hearings and solicit comments on that report to 

Congress; issue a final determination based on the report to Congress and provide an opportunity 

for public comment on that report regarding whether and how to regulate CCRs under RCRA.

Prior to making any final regulatory determination for CCRs, the statute directs EPA to fully 

inform Congress of the Agency’s initial recommendation. This is not a mere procedural 

formality. As Representative Bevill emphasized when introducing his amendment, it was 

especially critical that EPA not make the final regulatory determination in isolation, but that 

Congress and relevant federal agencies be involved in the decision-making process. The failure 

of EPA to prepare a report to Congress outlining fully and comprehensively the Agency’s 

recommendation to regulate CCRs under RCRA’s hazardous waste program is at odds with the 

plain language of the statute. This failure deprives Congress of its statutorily-prescribed right to 

be fully informed of any such recommendation so that it can evaluate and respond, as 

appropriate, to the Agency’s proposed course of action before EPA makes a final regulatory 

determination and develops federal regulations

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 
392

Comment Number: EPA-HQ-RCRA-2009-0640-09885-5

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.2 10.4.5

Comment Excerpt Text:

The proposed Subtitle C option is inconsistent with the Bevill amendment

Even assuming, for purposes of argument, that EPA was authorized to revisit its final Bevill 

Regulatory Determination for CCRs and that it followed the statutorily-prescribed procedures for 

issuing a new regulatory determination, the Subtitle C option would nonetheless be unlawful 

because it:

1. is inconsistent with the Bevill amendment’s directive that any final determination not impair 

CCR beneficial use; 

2. is at odds with Congress’ express directive that any regulatory program for CCRs not 

discourage the use of coal by imposing undue regulatory costs on the management of CCRs;

3. disregards the nearly unanimous views of the federal and state agencies - whom the Bevill 

amendment directs EPA to consult with in reaching a final regulatory determination - that 

Subtitle C regulation is not warranted for CCRs; and

4. is inconsistent with EPA’s own findings that state programs can properly address CCR 

disposal practices under RCRA Subtitle D.

In addition, the Subtitle C option is arbitrary and capricious because EPA has not provided a 

reasoned explanation for reversing its previous conclusion that application of the inflexible 

Subtitle C regulatory program to CCRs will result in excessive and unnecessary regulation. 

EPA’s theory that regulating CCRs under RCRA’s Subtitle C will actually increase CCR 

beneficial use is one of the most incorrect aspects of the CCR proposal. This position ignores 

actual marketplace evidence, which already is showing declines in CCR beneficial use just from 

the threat of Subtitle C regulation; EPA’s own prior positions; the nearly unanimous position of 

other federal agencies and state environmental protection agencies; the views of standardssetting organizations that have no economic, political or other vested interests in the outcome of 

this rulemaking; the long-standing view of Congress; and the position of electric utilities, the 

entities that produce the CCRs for the beneficial use market.

EPA identifies the array of valid concerns raised by industry, utilities, states, standard settingorganizations and others that Subtitle C regulation will effectively cripple the CCR beneficial use 

market, but offers remarkably little, if any, response to these points. In fact, EPA expressly 

acknowledges that, if it pursues the Subtitle C option, some states, such as Florida, “would likely 

prohibit the beneficial use of CCRs.” Instead of providing substantive responses to these 
393

concerns, EPA persists in its position that it understands the economic drivers in the CCR 

beneficial use market better than those actually engaged in the business. EPA argues that driving 

up the costs of CCR disposal as high as possible (as would happen under the Subtitle C option) 

would force more CCRs into the beneficial use market. EPA’s theory, however, is based on 

flawed examples, and ignores the first-hand knowledge of those involved in the CCR beneficial 

use market who have consistently provided EPA with information and data demonstrating that 

any form of Subtitle C regulation will cripple the beneficial use of CCRs. EPA’s theory also fails 

to consider whether the marketplace can absorb the vastly increased volume of CCRs that it 

speculates will be beneficially used under the Subtitle C option. Both the CCR producers and the 

CCR beneficial use market have explained that this is not the case.

EPA also argues that any stigma resulting from Subtitle C regulation will be “significantly 

reduced by listing CCRs as a ‘special waste,’” attempting to deflect attention from the reality that 

these materials would be subject to hazardous waste regulation from their point of generation 

until their ultimate disposal. EPA’s “special waste” label will do nothing to reduce the potential 

legal liabilities of using a material in a commercial or residential setting that is a listed waste 

under Subtitle C and subject to hazardous waste regulation when disposed of. RCRA makes clear 

that only materials that are “hazardous waste listed or identified” under Subtitle C are subject to 

the statute’s hazardous waste controls, including, among other things, its permitting, substantive 

design and operating standards, and corrective action requirements. In evaluating the potential 

impacts of Subtitle C regulation on CCR beneficial use, it is important to note that the sponsors 

of the Bevill amendment cautioned EPA against regulation of CCRs under Subtitle C for 

precisely the same reasons being offered today by opponents of the Subtitle C option: subjecting 

CCRs to the stringent Subtitle C program is certain to have adverse impacts on the use of these 

materials. Representative Bevill was clear that one of the primary purposes of his amendment 

was to reinforce the “national commitment to encourage reuse of such materials as fly ash.” 

Considering the above in addition to the record evidence already assembled in this rulemaking 

proceeding, it is clear that regulating CCRs under any Subtitle C hazardous waste regime, even 

with the “special waste” label, will have a significant adverse impact on CCR beneficial use. 

EPA itself concluded in its 2000 Regulatory Determination that the stigma from regulating CCRs 

under RCRA’s hazardous waste program could harm CCR beneficial use. Importantly, the 

Subtitle C option considered and rejected in 2000 was a “contingent Subtitle C” option, which 

meant that CCRs managed in accordance with Subtitle D-like standards would not be classified 

as a hazardous waste; only CCRs not properly managed under the Subtitle D standards would 

have been regulated as listed hazardous wastes. EPA recognized that, even under that approach, 

the mere possibility of subjecting CCRs to hazardous waste regulation would have an adverse 

stigmatizing effect on CCR beneficial use.

The Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) has 

warned EPA repeatedly since initiation of this rulemaking that “[t]he most compelling reason not 

to impose Subtitle C regulations [on CCRs] is that the beneficial use of CCB has been very 

successful. The ‘hazardous’ label of Subtitle C would be detrimental to State CCB beneficial use 

programs.” Just last fall, after polling every state in the nation on the potential impacts on state 

programs of regulating CCRs under Subtitle C, ASTSWMO wrote EPA to caution that 

“[r]egulation under RCRA Subtitle C has the potential to put an end to many beneficial uses for 
394

[coal combustion waste] CCW. In most States, a primary requirement for a beneficial use 

determination is that the waste not be hazardous. Labeling CCW a hazardous waste will have a 

detrimental [impact] on its beneficial use.”

Real-world evidence of the adverse impacts on CCR beneficial use stemming from just the 

prospect of Subtitle C regulation is being reported by electric utilities. Just as CCR marketers 

and end-users are already feeling the adverse impacts of this proposal, so too have utilities 

become painfully aware of the stigma associated with the proposal

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-8

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.4

Comment Excerpt Text:

EPA does not justify a change in position that would use Subtitle C.

In addition to the above, EPA’s selection of the Subtitle C option would be arbitrary and 

capricious because the agency has provided no explanation as to why its earlier conclusions that 

the Subtitle C option would result in excessive and inappropriate regulatory controls for CCRs 

are no longer true. The EPA’s 1993 final Regulatory Determination concluded that the four large 

volume CCRs – fly ash, bottom ash, boiler slag, and flue gas desulfurization waste – do not 

warrant hazardous waste regulation. EPA emphasized that the inflexible Subtitle C hazardous 

waste framework was inappropriate for CCRs, explaining “that it is unlikely that Subtitle C 

would effectively address the problems associated with the four large-volume fossil-fuel 

combustion wastes [CCRs] without imposing unnecessary controls.”

This was an important conclusion. As the agency explained in outlining the factors that it would 

evaluate in making a final regulatory determination, “the special status of the [CCR] waste 

requires that the Agency consider the impacts to the industry that regulation under Subtitle C 

would create in making a decision to regulate the waste as hazardous.” EPA found that the rigid 

nature of the Subtitle C regulatory system would result in excess costs and unnecessary 

regulation as applied to CCR management units. After acknowledging that CCRs rarely exhibit a 

hazardous waste characteristic and thus would not be subject to hazardous waste controls unless 

they were listed as a hazardous waste, EPA emphasized that the listing approach would be 

inappropriate and excessive.
395

Having previously concluded that the Subtitle C approach would be inappropriate because, 

among other reasons, it would result in the over-regulation of CCRs in contravention of the 

Bevill amendment, EPA provides no explanation in the proposal as to what, if anything, has 

changed to suggest that the imposition of these very same Subtitle C controls will no longer 

result in inappropriate and unnecessary costs on the utility industry. As EPA itself noted earlier, 

“the special status of the [CCR] waste requires that the agency consider the impacts to the 

industry that regulation under Subtitle C would create in making a decision to regulate the waste 

as hazardous.” There is no reasoned explanation for EPA’s about-face on this issue.

The excessive costs and unduly burdensome regulation of CCRs under the proposed Subtitle C 

option are at least as great today as they were ten years ago when EPA rejected application of the 

Subtitle C hazardous waste rules for CCRs. As EPA has failed to explain why regulation of 

CCRs under Subtitle C is now appropriate, having expressly found earlier that such regulation 

would be both “inappropriate” and in “excess of requirements” for CCRs, any final Subtitle C 

regulation would be arbitrary and capricious

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10166-6

Organization1:Consumers Energy Company

Commenter1: Gary A. Dawson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Further, the characteristics of CCRs have not changed since the final regulatory determinations 

in 1993 and 2000, and there is no regulatory mechanism under the Bevill Amendment that allows 

for the reversal of these final determinations in the CCR proposed rules. This issue is discussed 

in detail in the USWAG comments . 

Consumers Energy concludes that EPA's proposal to regulate CCRs under Subtitle C of RCRA is 

inconsistent with the EPA's past final determinations and with the Bevill Amendment to RCRA 

and is arbitrary and capricious.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-10

Organization1:Utility Solid Waste Activities Group (USWAG) et al.
396

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Even assuming, for purposes of argument, that EPA was authorized to revisit its final Bevill 

Regulatory Determination for CCRs and that it followed the appropriate statutory procedures for 

issuing a new regulatory determination, the Subtitle C option would nonetheless be unlawful 

because it (1) is inconsistent with the Bevill Amendment‘s directive that any final determination 

not impair CCR beneficial use, (2) conflicts with Congress‘ directive that any regulatory 

program for CCRs not discourage the use of coal by imposing undue regulatory costs on the 

management of CCRs, and (3) disregards the nearly unanimous views of the federal and state 

agencies (with which the Bevill Amendment directs EPA to consult in reaching a final regulatory 

determination) that Subtitle C regulation is not warranted for CCRs In addition, the Subtitle C 

option is arbitrary and capricious because EPA has not provided a reasoned explanation for 

reversing its previous conclusion that application of the inflexible Subtitle C regulatory program 

to CCRs will result in excessive and unnecessary regulation. These issues are discussed in detail 

below.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-40

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

A. EPA’s Position On Passive Migration Is Contradictory To Federal Case Law

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

units has been flatly rejected by the courts. Five United States Courts of Appeals have looked 

directly at the question of whether the definition of “disposal” includes the type of passive 

migration that EPA is proposing to force into the scope of these regulations. All five courts have 

soundly rejected this interpretation. [Footnote 28: Notably, the only Administrative Law Judge 

(“ALJ”) to have considered this issue also concluded that the term “disposal” does not include 

the passive migration of hazardous waste. In re Globe Aero Ltd., Inc. and the City of Lakeland, 

1996 EPA ALJ Lexis 47 (June 4, 1996). The ALJ held that “[d]isposal is an act rather than a 

state of continued noncompliance. The fact that the waste or waste constituents may migrate 
397

does not provide a basis for finding a continued disposal violation.” Id. (internal citations 

omitted).”] Although these cases have considered the definition of disposal in the context of 

CERCLA, 42 U.S.C. § 9601 et seq., “the distinction is of no moment” as CERCLA specifically 

incorporates by reference RCRA‘s statutory definition of “disposal.” Delaney v. Town of 

Carmel, 55 F. Supp. 2d 237, 256 (S.D.N.Y. 1999); see also Interfaith Cmty. Org. v. Honey-Well 

Intl Inc., 263 F. Supp. 2d 796, 846 n.10 (D.N.J. 2003) (finding that although the Third Circuit‘s 

opinion in United States v. CMDG Realty Co., 96 F.3d 706 (3rd Cir. 1996), “addressed 

CERCLA liability, the Court was interpreting the RCRA definition of ?disposal‘“ and the Third 

Circuit‘s holding was therefore controlling in an assessment of RCRA liability as well). 

[Footnote 29: See CERCLA § 101(29), 42 U.S.C. § 9601(29) (“The term[] ?disposal‘ shall have 

the same meaning provided in section 1004 of the Solid Waste Disposal Act . . . .)”]

Under RCRA, “disposal” means:

[t]he discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or 

hazardous waste into or on any land or water so that such solid waste or hazardous waste or any 

constituent thereof may enter the environment or be emitted into the air or discharged into any 

waters, including ground waters.

RCRA § 1004(3), 42 U.S.C. § 6903(3). Most recently, the Court of Appeals for the Ninth Circuit 

joined four other circuit courts in rejecting the notion that the passive migration of contaminants 

through the soil falls within this statutory definition of “disposal.” See Carson Harbor Vill. v. 

Unocal Corp., 270 F.3d 863 (9th Cir. 2001). Adhering to the Supreme Court‘s admonition that 

“[i]n examining the statutory language, we . . . adhere to the ‘Plain Meaning Rule,‘“ the court 

reasoned that “[i]f we try to characterize this passive soil migration in plain English, a number of 

words come to mind, including gradual ‘spreading,‘ ‘migration,‘ ‘seeping,‘ ‘oozing,‘ and 

possibly ‘leaching.‘ But certainly none of those words fits within the plain and common meaning 

of ‘discharge, ... injection, dumping, ... or placing.‘“ Id. at 879 (ellipses in original). The Ninth 

Circuit‘s holding in Carson Harbor Vill.. therefore is directly at odds with EPA‘s proposed 

interpretation that the passive migration of constituents from previously closed CCR surface 

impoundments constitutes “disposal” under RCRA. See also Delaney, 55 F. Supp. 2d at 256 

(“the alleged passive migration of hazardous waste, through the groundwater or otherwise[,] ... 

does not constitute ?disposal‘ of hazardous waste as defined in RCRA”).

In addition, the Sixth Circuit has held that “because ?disposal‘ is defined primarily in terms of 

active words such as injection, deposit, and placing, the potentially passive words ?spilling‘ and 

?leaking‘ should be interpreted actively[.]” United States v. 150 Acres of Land, 204 F.3d 698, 

706 (2000). As there would be no human activity involved in the movement of water through 

closed and/or inactive CCR impoundments, EPA‘s proposed expansion of the definition of 

“disposal” to include passive migration directly contradicts the Sixth Circuit‘s holding.

The Second Circuit has similarly agreed that “[n]one of these terms [i.e., discharge, deposit, 

injection, dumping, spilling, leaking, or placing] is commonly used to refer to the gradual 

spreading of hazardous chemicals already in the ground.” ABB Industrial Systems v. Prime 

Technology, 120 F.3d 351, 358 (2d Cir. 1997). Therefore, this Circuit‘s holding would also not 

permit EPA‘s proposed expansion of “disposal” to include the gradual spreading of chemicals 
398

already in the ground.

In addition, the Third Circuit has held that, based on the plain meaning of the words used to 

define disposal, “the passive migration of contamination dumped in the land prior to ownership 

does not constitute disposal.” United States v. CDMG, 96 F.3d 706, 711 (3rd Cir. 1996). The 

Third Circuit noted that its conclusion was supported by the fact that the term “leaching” is not 

included in the statutory definition of “disposal.” Id. at 715. The Third Circuit‘s holding in 

CDMG rejects EPA‘s efforts to force the “passive migration” of wastes into the definition of 

“disposal.”

The Fifth Circuit has also agreed that where the plaintiff “failed to show that any hazardous 

waste ?leaked‘ or ?spilled‘ during [the defendant‘s] ownership of the property[,] a disposal did 

not occur during [the defendant‘s] ownership.” Joslyn Mfg. Co. v. Koppers Co., 40 F.3d 750, 

762 (5th Cir. 1994). This position is consistent with the holdings in the Second, Third, Sixth and 

Ninth Circuits, and similarly demonstrates that EPA‘s proposed passive disposal theory violates 

RCRA‘s clear statutory language.

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

referred to the definitions section of the Response to Comment document for a discussion on 

the definition of “disposal.”

Comment Number: EPA-HQ-RCRA-2009-0640-10483-7

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The fundamental flaw in the proposed Subtitle C option is that it is premised on the notion that 

EPA is at liberty to reverse its final Regulatory Determinations that CCRs do not warrant 

regulation under Subtitle C of RCRA. Because the statute does not authorize EPA to reverse 

these final Regulatory Determinations, EPA may not adopt the Subtitle C hazardous waste option 

for CCRs. Even assuming for purposes of argument that the statute did authorize such reversal, 

EPA‘s proposal to regulate CCRs under Subtitle C does not comport with the Bevill 

Amendment‘s statutorily-prescribed decision making process.

While EPA‘s current policy goals may favor the Subtitle C option over the Subtitle D option, 

policies cannot trump the law. The United States Court of Appeals for the District of Columbia 

Circuit cautioned against precisely such precipitous agency action by new administrations when, 

in the pursuit of political and policy agendas, agencies stray beyond the plain language of their 

authorizing statutes:
399

We recognize that a new administration may try to effectuate new philosophies that have been 

implicitly endorsed by the democratic process. Nonetheless, it is axiomatic that the leaders of 

every administration are required to adhere to the dictates of statutes that are also products of 

democratic decision-making. Unless officials of the Executive Branch can convince Congress to 

change the statutes they find objectionable, their duty is to implement the statutory mandates in a 

rational manner.

Int'l Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 827 (D.C. Cir 1983). The D.C. 

Circuit‘s caution rings true in this case. [Footnote 9: The same caution was echoed by in a recent 

speech before the Environmental Law Institute by Judge Tatel of the D.C. Circuit:

[I]t‘s at times like these, when a new administration is determined to change environmental 

policy, that our commitment to the fundamental principles of administrative law is really 

tested... In both Republican and Democratic administrations, I have too often seen agencies 

failing to display the kind of careful and lawyerly attention one would expect from those 

required to obey federal statutes and to follow federal statutes and to follow principles of 

administrative law. In such cases, it looks to all the world that agencies choose their policy first 

and then later seek to defend its legality. This gets it backwards. . . . It‘s backwards because 

whether or not agencies value neutral principles of administrative law, courts do, and they will 

strike down agency action that violates those principles – whatever the president‘s party, 

however popular the administration, and no matter how advisable the initiative. “The 

Administrative Process and the Rule of Environmental Law"; the Honorable David S. Tatel, at 

an Environmental Law Institute symposium entitled “An Agenda for the New EPA” (Oct. 6, 

2009), (emphasis added). ] While Administration and EPA policies may have changed over the 

last two years, the law governing the decision making process by which EPA may choose to 

regulate CCRs under RCRA has not

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-8

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3

Comment Excerpt Text:

A. EPA Completed The Bevill Regulatory Process For CCRs In 2000 And The Statute Does Not 

Authorize EPA To Reverse That Decision

EPA has completed the Bevill process pursuant to a judicially-imposed deadline and determined, 

in accordance with the congressionally-mandated decision-making process, that CCRs do not 
400

warrant regulation under Subtitle C. The statutory decision making process is complete and 

RCRA does not authorize EPA to decide to take a second bite at the apple and reverse its final 

CCR Regulatory Determinations in a manner of its own choosing. 

Congress established a detailed process by which EPA could determine whether and how to 

regulate CCRs under RCRA Subtitle C. EPA has completed that statutory process, determining 

that CCRs do not warrant regulation under RCRA Subtitle C, and concluding instead that CCRs 

warrant regulation under RCRA‘s Subtitle D nonhazardous waste program. The plain language 

of the statute does not contemplate, let alone authorize, EPA undertaking another round of the 

Bevill decision-making for CCRs. If it did, the statutory process and its associated deadlines for 

reaching a final regulatory determination would have no meaning and EPA could continually 

change its mind in an abbreviated fashion, as illustrated by the proposed Subtitle C option.

EPA readily concedes that the Bevill Amendment does not include a process for Agency reversal 

of the CCR final Regulatory Determinations. In response to an inquiry from Representative 

Markey following the Kingston ash release regarding whether and how EPA could reverse its 

final CCR Regulatory Determinations for CCRs, EPA‘s then- Acting Associate Administrator 

readily acknowledged that “RCRA does not specifically spell out the process by which we 

[would] revise the Regulatory Determination.” See Letter from Joyce K. Frank, EPA Acting 

Associate Administrator, to Rep. Markey, Chair, House Committee on Energy and Commerce, at 

3 (Jan. 30, 2009) (“Frank Letter”) (attached as Appendix 4). As the D.C. Circuit has held, 

Congress‘ failure to grant an agency a given power is not an ambiguity as to whether that power 

has, in fact, been granted. On the contrary, and as this Court persistently has recognized, a 

statutory silence on the granting of a power is a denial of that power to the agency. American 

Bus. Ass’n v. Slater, 231 F.3d 1, 8 (D.C. Cir. 2000) (Sentelle, J., concurring) (emphasis added). 

Here, even EPA acknowledges that the statute does not speak to whether and how EPA can 

revise its final CCR Regulatory Determinations. The Agency nonetheless assumes that it 

possesses such power. It does not.

It is a fundamental principle of administrative law that an agency‘s authority to act must come 

directly from Congress. Absent such authority, an agency may not act. See U.S. Telecom Ass’n 

v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) ([S]tatutory silence simply leaves th[e] lack of 

authority untouched. In other words, the failure of Congress to use Thou Shalt Not language 

doesn‘t create a statutory ambiguity of the sort that triggers Chevron deference.); Ethyl Corp. v. 

EPA, 51 F.3d 1053, 1060 (D.C. Cir. 1995) (“We refuse ... to presume a delegation of power 

merely because Congress has not expressly withheld such power.”); Ry. Labor Executives’ 

Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (“Were courts to 

presume a delegation of power absent an express withholding of such power, agencies would 

enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely 

with the Constitution as well.”) (emphasis in original). [Footnote 10: See also Adams Fruit Co. v. 

Barrett, 494 U.S. 638, 649 (1990) (“A 'gap' is not created in a statutory scheme merely because a 

statute does not restate the truism that States may not preempt federal law.”); Aid Ass’n for 

Lutherans v. USPS, 321 F.3d 1166, 1174-75 (D.C. Cir. 2003) (“[T]he Postal Service‘s position 

seems to be that the disputed regulations are permissible because the statute does not expressly 

foreclose the construction advanced by the agency. We reject this position as entirely untenable 

under well established case law.”).]
401

The Bevill Amendment is completely silent on EPA‘s authority to redo or reverse a final 

regulatory determination that the Agency has already properly reached pursuant to the 

Amendment‘s statutorily prescribed procedures and deadlines. [Footnote 11: Though, as noted 

above, EPA missed the statutory deadlines set forth in the statute for reaching a final regulatory 

determination for CCRs; a citizen suit over this missed statutory deadline resulted in EPA being 

subject to court-ordered deadlines for issuing both the 1993 and 2000 CCR final Regulatory 

Determinations. ] If Congress had wanted to give EPA this authority, it would have done so 

explicitly.[Footnote 12: Indeed, when Congress wishes to give an agency the authority to revisit 

prior statutory compelled actions, it knows how to do so. See e.g., Clean Air Act § 112(c)(1), 42 

U.S.C. § 7412(c)(1) (1990) (“CAA”) (directing EPA to re-evaluate no less often then every eight 

years and revise, as appropriate, based on public comment or new information, the list of 

categories of major sources and area sources listed by EPA under CAA Section 112(c)(3)); see 

also CAA § 109(d), 42 U.S.C. § 7409(d) (directing EPA to review at five year intervals the 

criteria for pollutants published under CAA Section 7408 and the national ambient air quality 

standards promulgated under Section 7409 and make such revisions and promulgate new 

standards as may be appropriate). As explained above, Congress has not provided EPA with 

similar authority to reevaluate and revise its final CCR Regulatory Determinations.] As the 

above federal decisions make clear, such silence means that EPA does not have the authority to 

undertake, through a process and timing of its own choosing, a second regulatory determination.

The plain language of the statute provides for only a one-time decision, directing EPA to 

determine, not later than six months after the statutorily-required report to Congress on CCRs, 

whether Subtitle C regulation for CCRs is warranted. See RCRA § 3001(b)(3)(C). That 

determination, which was to be based on information developed or accumulated pursuant to such 

study, public hearings, and comment, was to be published in the Federal Register and 

accompanied by an explanation and justification of the reasons for it. Id. EPA completed this 

statutory process for CCRs over ten years ago, concluding for a multitude of reasons that CCRs 

do not warrant regulation under RCRA Subtitle C. The statute simply does not empower EPA to 

revisit its final decision and render a new determination.

If EPA wishes once more to undertake the statutorily-prescribed process for reaching a final 

regulatory determination for CCRs, it must obtain this authority from Congress. If Congress 

were to grant EPA such authority, it would be reasonable to expect that Congress would establish 

new statutory deadlines and perhaps new and different statutory study factors for EPA to 

evaluate in undertaking an additional regulatory determination for CCRs. Absent such authority 

from Congress, the Agency is not empowered to alter its final 1993 and 2000 Regulatory 

Determinations for CCRs. Therefore, EPA cannot pursue the Subtitle C option. [Footnote 13: 

While “[a]n agency can normally change its position and reverse a decision ... Congress, 

however, undoubtedly can limit an agency‘s discretion to reverse itself[.]” New Jersey v. EPA, 

517 F.3d 574, 582-83 (D.C. Cir. 2008). Here, Congress has limited EPA‘s ability to reverse its 

final Bevill Regulatory Determination by specifying prescribed procedures and timeframes for 

completing the determination and not authorizing the Agency to revisit that final determination 

and issuing a new determination. ]

Response: The Agency acknowledges and appreciates the comment. The commenter is 
402

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-9

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2

Comment Excerpt Text:

B. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second 

Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment’s Prescribed 

Process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory 

Determination for CCRs, the Agency would have to adhere to the statutorily prescribed 

procedures that Congress demanded EPA follow in determining whether and how to regulate 

CCRs. EPA itself has recognized this; in responding to Representative Markey‘s inquiry to EPA 

about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency 

stated that it would be “advisable [for EPA] to go through the same process we followed” in 

issuing the 1993 and 2000 final Regulatory Determinations. [Footnote 14: See Frank Letter, 

attached as Appendix 4.] Despite what it told Congress, EPA has inexplicably strayed beyond the 

plain language of the statute by proposing to reverse its final Regulatory Determinations for 

CCRs without following the statutorily-required process it followed for issuing those 

Determinations in the first instance.

As explained above, the Bevill Amendment requires that, before making any final regulatory 

determination for CCRs, EPA first must study CCRs pursuant to the eight statutory study factors 

and then “publish a report on such study, which shall include appropriate findings.” RCRA § 

8002(n). The statute then directs that “such study and findings [i.e., the Report to Congress] shall 

be submitted to the Committee on Environment and Public Works of the United States Senate 

and the Committee on Energy and Commerce of the United States House of Representatives.” Id. 

Following submission of the report to the appropriate congressional committees, the statute 

directs EPA to conduct public hearings and provide an opportunity for comment on the Report to 

Congress, and either determine to promulgate regulations regulating CCRs under RCRA‘s 

Subtitle C regulations or determine that such regulations are unwarranted. RCRA § 

3001(b)(3)(C). Following this process, EPA was directed to publish its regulatory determination, 

“which shall be based on information developed or accumulated pursuant to such study, public 

hearings, and comment, in the Federal Register accompanied by an explanation and justification 

of the reasons for it.” Id.
403

Despite these unambiguous statutory conditions for determining whether and how to regulate 

CCRs under RCRA, EPA has not complied with these conditions in proposing to reverse and 

reissue its final Regulatory Determination for CCRs. Among other things, EPA has not prepared 

a Report to Congress setting forth its rationale for proposing to reverse course and issuing a new 

regulatory determination declaring that CCRs now warrant Subtitle C regulation. This failure 

violates the express terms of the statute that any final regulatory determination be based on 

public hearings and comments on the Report to Congress. This requirement is not satisfied by the 

truncated and abbreviated review of the Bevill Amendment‘s statutory study factors presented by 

EPA in the instant proposal.

The language of the statute could not be clearer on this point: following submission of its Report 

to Congress, and after public hearings, and comment on the report, EPA was to publish its 

regulatory determination “which shall be based on information developed or accumulated 

pursuant to such study [i.e., EPA‘s Report to Congress], public hearings, and comment, in the 

Federal Register accompanied by an explanation and justification of the reasons for it.” RCRA § 

3001(b)(3)(C). The D.C. Circuit has confirmed that the statute unambiguously directs that the 

final regulatory determination is to be based on the Report to Congress. EDF v. EPA, 852 F.2d at 

1314 (“The statute clearly states that the agency is to base its regulatory determination on the 

information gathered for the § 8002(p) study”). [Footnote 15: The Section 8002(p) study refers 

to the EPA‘s Report to Congress on certain mining wastes that also were subject to the Bevill 

Amendment. Importantly though, the D.C. Circuit‘s decision is equally applicable to CCRs, as 

the statutory process for EPA issuing a final Regulatory Determination for mining wastes and 

CCRs is identical. See RCRA § 3001(b)(3)(C) (referencing both the CCR § 8002(n) study and 

mining waste § 8002(p) study).] As the Supreme Court stated in Nat’l R.R. Passenger Corp. v. 

Nat’l Ass’n of R.R. Passengers (Amtrak), “[w]hen a statute limits a thing to be done in a 

particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 (1974).

Thus, even assuming EPA was authorized to render a new and revised regulatory determination, 

such determination must be preceded and predicated on a new Report to Congress. Even EPA 

has recognized that any final regulatory determination must be predicated on the Report to 

Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed the Bevill statutory study 

factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he findings of these two 

Reports to Congress were the basis for our decisions in the August 1993 and May 2000 

Regulatory Determinations to maintain the Bevill exemption for CCRs.”); see also 65 Fed. Reg. 

at 32219 (detailing how EPA‘s 2000 final Regulatory Determination was based on public 

comments on the Agency‘s 1999 Report to Congress).

Representative Bevill underscored the point that the public hearing and comment process was 

intended to directly respond to EPA‘s Report to Congress and that any final regulatory 

determination was to be based on the information resulting from that process: “Finally, let me 

direct the House‘s attention to the fact that after EPA concludes these studies, it will be required 

to obtain public views on them and to make known whether, as a result of this process, EPA 

believes any regulation of these materials is necessary.” 126 Cong. Rec. at 3362 (emphasis 

added).

Here, of course, there is no Report to Congress recommending that CCRs be regulated under 
404

RCRA Subtitle C. This is especially egregious given that the Reports to Congress that EPA did 

provide to Congress made clear that CCRs do not warrant regulation under RCRA‘s Subtitle C 

hazardous waste program and that, therefore, EPA would not pursue this regulatory path. Now, 

more than ten years later, EPA is proposing to reverse that decision and issue a new regulatory 

determination for CCRs without explaining its reasoning to Congress as required by the statute, 

and without allowing for public comment and hearings on the Report to Congress.

EPA may believe that its abbreviated review of the Bevill statutory factors in the proposed rule is 

the functional equivalent to preparing and submitting a Report to Congress, but the Agency‘s 

view is legally flawed for at least three reasons. First, as explained above, such a position would 

be at direct odds with the plain language of the statute, which unambiguously commands that any 

final regulatory determination be based on the Report to Congress. The statute simply does not 

authorize the type of fast-track decision-making process that EPA is attempting to employ under 

the Subtitle C option.

Second, the statute does not authorize the Agency to collapse the Bevill Amendment‘s statutory 

decision-making process into the more abbreviated exercise, which the Agency is undertaking 

here, by combining a proposed reversal of its earlier final Regulatory Determinations with the 

proposed development of Subtitle C regulations for CCRs. As EPA candidly admits, the end 

result would be the issuance of a new regulatory determination calling for Subtitle C regulation 

along with the final Subtitle C regulations. This ignores the plain language and purpose of the 

Bevill Amendment which requires the regulatory determination to precede the promulgation of 

any subsequent regulations.

Looking again at the statutory text, RCRA Section 3001(b)(3)(C) provides that after issuing and 

obtaining public input on its Report to Congress, EPA was to “either determine to promulgate 

regulations” for CCRs under RCRA Subtitle C “or determine that such regulations are 

unwarranted.” The Agency was then directed to publish its final determination in the Federal 

Register. Id. As the D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the 

terms ?determination‘ and ?regulation,‘ . . .signifying that, consistent with the principle that 

effect must be given to each word of a statute, the two terms were intended to have distinct 

meanings.” Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) 

(“American Portland Cement”). Given this distinction, the sequence of actions directed by 

Section 3001(b)(3)(C) makes clear that the regulatory determination – whether or not to regulate 

CCRs under Subtitle C – was to be a separate and distinct step from the subsequent promulgation 

of any such regulations.

This statutory step-wise process is consistent with the Bevill Amendment‘s legislative history 

that EPA employ a more deliberative, sequential procedure than that traditionally applied to 

other wastes under RCRA in determining whether and how EPA should regulate Bevill wastes in 

the first instance. See e.g., EDF v. EPA, 852 F.2d at 1314 (“Indeed, our reading of the statute and 

the legislative history strongly suggests that Congress designed the Bevill Amendment to break 

with the previous approach to regulation of hazardous industrial wastes.”). Under the Bevill 

Amendment, only after the regulatory determination has been issued does the statute contemplate 

EPA undertaking any appropriate rulemakings based on the determination. As the court 

explained in American Portland Cement:
405

Section 3001(b)(3)(C) provides the product of the notice and comment process [on the Report to 

Congress] will be a determination of whether regulation is warranted in the future, not 

regulations themselves. While Congress established a timetable for EPA‘s Regulatory 

Determination, it set no deadline for the promulgation of regulations that EPA might find 

necessary under § 3001(b)(3)(C). Accordingly, the notice and comment proceedings [on the 

Report to Congress] were aimed at informing EPA‘s decision at an intermediate rather than 

ultimate stage in the rulemaking process.

101 F.3d at 777.

Therefore, the accelerated decision-making process contemplated in EPA‘s proposed Subtitle C 

option – involving the simultaneous reversal and reissuance of the final Regulatory 

Determination for CCRs, coupled with the issuance of Subtitle C hazardous waste regulations for 

CCRs – is flatly inconsistent with the statute. Indeed, the public notice and comment process on 

the Report to Congress is focused only on the appropriateness of EPA‘s evaluation of the Bevill 

Amendment‘s eight statutory study factors and EPA‘s recommendation in that Report on 

whether CCRs warrant regulation under Subtitle C. The notice and comment process on any

subsequent rulemaking implementing a final regulatory determination necessarily involves a 

wholly separate set of legal and factual issues. Therefore, as the D.C. Circuit recognized, the 

statute does not authorize EPA merging these two distinct agency actions into a single step. By 

attempting to merge the two separate agency actions together in the instant rulemaking, EPA has 

not clearly delineated its rationale for proposing to reverse and issue a new regulatory 

determination from the rationale underlying the proposed Subtitle C regulations. The result is a 

confusing and disjointed proposal that fails to comply with the sequential decision-making and 

implementation process required by the statute. This is why Congress established a formalized 

step-wise process for issuing the final regulatory determination and any subsequent regulations.

Finally, EPA‘s failure to issue a new Report to Congress setting forth its reasoning on why it 

now believes CCRs warrant hazardous waste regulation – after twice reaching just the opposite 

conclusion – deprives Congress of its statutorily prescribed right to be fully informed of any such 

recommendation. Congress required this so that it could evaluate and respond, as appropriate, to 

the Agency‘s proposed course of action before EPA makes a final Regulatory Determination and 

develops federal regulations. This is not a mere procedural formality. As Representative Bevill 

emphasized when introducing his amendment, it was especially critical that EPA not make the 

final regulatory determination in isolation, but that Congress and relevant federal agencies be 

involved in the decision-making process. 126 Cong. Rec. at 3362. The multi-step decisionmaking process set forth in the Bevill Amendment, including the submission of a Report to 

Congress, was specifically designed to enable Congress and other federal agencies to “evaluate 

the basis of the Agency‘s decision, and to address the question of what degree of regulation, if 

any, is appropriate [emphasis added]” and ultimately to ensure that the final regulatory 

determination was consistent with the nation‘s “commitment to develop a coherent and 

consistent policy toward the use of our coal and other energy resources.” Id. This multi-stake 

holder process reflects Congress‘ intent that it, along with other informed federal agencies and 

not EPA in isolation, are responsible for striking the delicate balance between the nation‘s 

environmental and energy goals.
406

Indeed, a key purpose of Congress requiring EPA to submit its Report to Congress was to ensure 

that any final regulatory determination appropriately reflect Congress‘ intentions that any 

regulation of CCRs not discourage the development of coal as one of the national primary 

sources of energy. This is precisely the type of oversight role that Congress reserves for itself 

when requiring agencies to submit reports to Congress prior to taking regulatory action. See 

Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 319 (D.C. Cir. 1988) (“NRDC v. 

Hodel”) (in explaining Congress‘ ability to respond to an agency report that is required to be 

submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention 

that the most representative branch is not powerless to vindicate its interests or ensure Executive 

fidelity to Legislative directives.”).[Footnote 16: See also generally James R. Bowers, 

“Regulating the Regulators” (1990); Joel D. Aberbach, “Keeping a Watchful Eye: The Politics of 

Congressional Oversight 132” (1990). For example, Congress can control agency action by 

writing more detailed legislation, by requiring staff investigations or field studies, or through 

agency reports required by Congress. See also United States v. S. Ind. Gas & Elec. Co., 2002 

U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. Oct. 24, 2002) (noting that the purpose of Congress 

requesting an agency to report on a new rule was “was to provide a check on administrative 

agencies‘ power to set policies and essentially legislate without Congressional oversight.”).] In 

this case, EPA‘s failure to prepare a Report to Congress regarding its proposal to regulate CCRs 

under RCRA‘s hazardous waste program has eviscerated the statutory oversight role provided to 

Congress in the Bevill Amendment‘s decision-making process for CCRs.

For these reasons, even assuming EPA had the authority to revisit and reverse its previous, final 

Regulatory Determination for CCRs, the Agency‘s proposed Subtitle C option does not comport 

with the statutory process that Congress imposed on EPA in determining whether and how to 

regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies 

demonstrating a clear need for regulation; provide to Congress a report detailing its findings on 

those studies; conduct public hearings and solicit comments on the new Report to Congress; and 

finally base any final regulatory determination on the new Report to Congress. Congress did not 

painstakingly craft such mechanisms into the statute for its own amusement and EPA is not at 

liberty to ignore such clear congressional directions.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-15

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:
407

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The administrative record does not support changing the Agency's existing policy regarding 

CCRs' RCRA status and reclassifying waste boiler slag and other waste CCRs as RCRA Subtitle 

C "special" or "hazardous" wastes. Such an action would be arbitrary and capricious under the 

Administrative Procedure Act, 5 U.S.C. §§ 551, et seq. ("APA").

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

referred to Units IV and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-6

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Any Election By U.S. EPA to Regulate Boiler Slag Under RCRA Subtitle C On This 

Administrative Record Is Subject To Reversal In The Courts

U.S. EPA erroneously grouped all CCRs together in the NPRM, however, the administrative 

record for the proposed rule is empty of evidence associated with boiler slag.

The lack of evidence on boiler slag here, magnified by the agency's complete reversal of course 

from two earlier record-supported rulemakings on CCRs, renders an election of Subtitle C status 

for boiler slag arbitrary and capricious and contrary to law

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-66

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
408

Other Sections: 3.1.2

Comment Excerpt Text:

VI. RECLASSIFYING WASTE BOILER SLAG AS RCRA SUBTITLE C WASTE WOULD 

BE ARBITRARY AND CAPRICIOUS AND CONTRARY TO LAW

A. The Boiler Slag Data Are Inadequate To Justify Subtitle C Regulation

As explained above, the data in the administrative record for this rulemaking fail to justify 

regulating waste boiler slag as a special or hazardous waste under Subtitle C of RCRA. EPA 

claims that CCR leachate issues are driving the proposed action. But the leachate data in the 

record show no significant leachate issues associated with boiler slag. The only boiler slag 

leachate data cited in the docket are the same leachate testing data that supported the Agency's 

May 22, 2000 conclusion that boiler slag and the other CCRs should be regulated as Subtitle D 

non-hazardous wastes, and not as Subtitle C hazardous wastes. [Footnote 132: See 75 Fed. Reg. 

at 35,138] As the NPRM notes, the TCLP test results supporting EPA's May 2000 CCR waste 

characterization decision showed that all of the metals in the boiler slag leachate samples had 

median values that were orders of magnitude lower than RCRA regulatory levels used to 

characterize a material as hazardous waste. [Footnote 133: See 75 Fed. Reg. at 35,139 Table 2] 

Strikingly, the more recent CCR TCLP data cited in the NPRM did not include any results from 

boiler slag analyses. [Footnote 134: See, e.g, 75 Fed. Reg. at35,139, Table 3]

EPA has not offered or received into the docket any relevant leachate test data or other technical 

evidence about boiler slag that differs significantly from - much less contradicts – the data the 

Agency cited in its 1993 and 2000 decisions. Harsco has provided new boiler slag leachate data 

derived from both recent TCLP tests and from the alternate leachate method adopted for this 

rulemaking (the Vanderbilt method). All of this data confirm the absence of leachate issues 

associated with boiler slag. Given the current state of scientific and technical knowledge about 

boiler slag and its beneficial uses, EPA's prior 1993 and May 2000 Regulatory Determinations 

that kept beneficially reused CCRs exempt from RCRA's hazardous waste regulations remain 

valid and appropriate for boiler slag.

Boiler slag's vitrified physical state renders the material and its vanous constituents generally 

immobile and environmentally benign. Therefore, any final EPA rule must ensure that boiler slag 

maintains its status as exempt from RCRA Subtitle C regulation when beneficially reused or 

discarded. 

The APA permits a court to set aside agency action that is "arbitrary" or "capricious." [Footnote 

135: See 5 US C. ~ 706(2)(A)] To meet the APA standard for a new rulemaking, an agency must 

"examine the relevant data and articulate a satisfactory explanation for its action." [Footnote 136: 

Motor Vehicle Mfrs. Ass 'n. of the United States, Inc v. State Farm MUI. AUla. Ins. Co., 463 US 

29 (1983).] In this case, the record lacks any boiler slag leachate data or any other boiler slagspecific data supporting a finding that boiler slag presents a potentially substantial hazard to 

human health or the environment when discarded. Accordingly, a decision to regulate waste 

boiler slag under Subtitle C would be arbitrary and capricious, because there is no "relevant 

data," nor a "satisfactory explanation" for a decision by EPA to lump boiler slag under the 

Subtitle C classification.
409

EPA simply lumps boiler slag in with other CCRs even though there is no reasonable 

explanation for that approach. For example, one such report that combined bottom ash and slag 

noted that "[s]ome selection and grouping of these types was necessary to product a consistent 

and simple screening analysis." [Footnote 137: RTI, Constituent Screening for Coal Combustion 

Wastes, Oct. 2002 (prepared for EPA) at 2-3.] Making life simpler for report writers is not a 

valid reason to combine boiler slag with other CCRs and arbitrarily assume they possess the 

same properties and present the same potential for creating human health and environmental 

concerns.

B. There Is No Lawful Reason To Devastate The Beneficial Reuse Industry For Boiler Slag And 

The Associated Jobs In The Industry

The scope of APA review is heightened if the agency action results in a change to an existing 

policy. An agency must show that there are good reasons for a new policy. [Footnote 138: Fed 

Commc 'ns Comm 'n v Fox Television Stations, Inc, 129 S. Ct. 1800, 18\1 (2009).] "When an 

agency disregards facts that underlay a previous policy, or when a prior policy has engendered 

serious reliance interests, an agency must provide a more detailed justification for its decision to 

alter a policy than what would suffice for a new policy created on a blank slate. It would be 

arbitrary and capricious to ignore such matters." [Footnote 139: Id] EPA's record in this 

rulemaking fails to provide any adequate justification for ignoring the underlying facts and 

altering the existing RCRA policy governing boiler slag and the other CCRs. Here, there are 

unchanged facts underlying the existing policy for boiler slag, and the existing policy has 

engendered serious reliance interests - an industry worth hundreds of millions of dollars and 

thousands of jobs.

The proposed regulation would have an enormous adverse effect on the economic vitality of the 

industries that beneficially reuse coal combustion residuals in reliance on EPA's existing CCR 

waste-classification policy. Harsco and others in the CCR industry have relied on and made 

major business decisions based on the scope and longevity of that existing EPA policy. Whole 

hosts of businesses that beneficially reuse boiler slag and other CCRs have flourished in reliance 

on the Agency's existing policy. Since the initial EPA ruling regarding boiler slag, and under the 

umbrella of subsequent rulings confirming the beneficial use of coal slag, Harsco has invested 

millions of dollars in both new construction and capital investments to improve and upgrade 

existing processing facilities and has negotiated long-term supply contracts for boiler slag.

Because of EPA's current CCR-classification policy, Harsco's Mineral Division and the seven 

other U.S. companies with business models based almost entirely on the beneficial reuse of 

boiler slag have been able to operate successfully in this country. Adoption of a new rule 

reversing the existing CCR-classification policy would impair significantly the revenues of those 

eight businesses, currently estimated, on a combined basis, to be approximately $200 million per 

year, and jeopardize hundreds of their employees' jobs. In addition, there are thousands of small 

businesses, such as roofing contractors, painters, metal working companies, and construction 

operations that rely on the availability of boiler slag-based products. Their workers could be 

negatively impacted by regulations restricting the availability of CCR-based products or severely 

stigmatizing such products in the marketplace.
410

Tens of thousands of companies purchase boiler slag for beneficial reuse, and together, those 

companies employ over 100,000 workers. [Footnote 140: See ACAA letter of March 25. 2009 

(Exhibil27)] All of the major asphalt roofing companies use boiler slag in their shingles due to 

performance and cost superiority. In the abrasives industry there are over 7,500 companies that 

use abrasive blasting materials. Together these industries represent hundreds of thousands of 

workers and affect every aspect of modem life. Sustainable costs and performance attributes for 

their blasting materials are dependent on uninhibited use of boiler slag.

Since EPA issued its 2000 Regulatory Determination for CCRs, the rate at which industry has 

been beneficially reusing CCRs has grown significantly. [Footnote 141: Id] In 1999, U.S. 

industry beneficially reused 30 million tons of CCRs, and by 2008, annual beneficial reuse 

reached 56 million tons. [Footnote 142: Id] That growth took place because industry relied on 

what appeared to be EPA's final resolution of CCRs' RCRA status. [Footnote 143: Id] Industry 

had the confidence to recycle CCRs into useful products without fear of being subjected to the 

expensive and daunting Subtitle C regulatory program or facing stigma or litigation concerns. 

Adopting the Subtitle C proposal, however, would destroy that progress and would raise the very 

real risk that EPA could change its position regarding all CCRs. Such a scenario would shift 

industry investment from progressive recycling efforts to a purely defensive CCR management 

scheme that controls risk by limiting the continued circulation of reused CCRs in the 

marketplace. These factors are all necessary to the development and continued existence of the 

boiler slag reuse industry.

The materials in the rulemaking docket are not sufficient to support any regulation of boiler slag 

under Subtitle C of RCRA, even if EPA were writing on a blank slate. The same absence of 

boiler slag data would nullify the legality of a change in regulatory status for boiler slag whether 

this were a new rulemaking or, as here, a reversal of existing long-term policy. "It is true that an 

agency acts arbitrarily when it departs from its precedent without giving any good 

reason."[Footnote 144: N. Cal. Power Agency v. Fed. Energy Regulatory Comm 'no 37 F.3d 

1517, 1522 (DC. Cir. 1994).] An agency is required to "provide a reasoned analysis indicating 

that prior policies and standards are being deliberately changed, not casually ignored. Moreover, 

if the record reveals that the agency has failed to consider an important aspect of the problem or 

has offered an explanation for its decision that runs counter to the evidence before [it]," the 

agency violates the APA. [Footnote 145: People of the Slate of Cal v. Fed. Commc 'ns Comm 'n, 

39 F.3d 919, 925 (9th Cir. 1994).] "[T]he agency must examine the relevant data and articulate a 

satisfactory explanation for its action, including a rational connection between the facts found 

and the choice made." [Footnote 146: Martin 011 Servo Inc V. Koch Ref Co, 582 F. Supp. 

1061,1066 (ND 11\ 1984).] In this rulemaking, as it relates to boiler slag, EPA fails to meet the 

APA standard of support widely recognized by federal courts.

Because there is no evidence to support the abrupt re-categorization of waste boiler slag as 

presenting a substantial hazard to human health or the environment, there is no rational 

connection between the evidence in the record and the agency's decision to categorize boiler slag 

as a Subtitle C special or hazardous waste. Therefore, a decision to change waste boiler slag's 

status to that of a special or hazardous waste under RCRA Subtitle C is subject to reversal in the 

courts.
411

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-67

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

CONCLUSION

The data in the NPRM's existing administrative record simply are not adequate to justify a 

change in the current RCRA regulatory status of waste boiler slag. In 1993 and 2000, EPA 

reviewed the then-available technical and scientific information concerning all CCRs, including 

boiler slag, and concluded that there was no basis for classifying any of them as a Subtitle C 

hazardous waste. [Footnote 147: See 40 CF.R. § 261: 58 Fed. Reg. 42,466 (Aug. 9. 1993): 65 

Fed. Reg. 32,214 (May 22, 2000).] EPA's current NPRM claims that "new" data exist to support 

the proposed regulation of boiler slag designated for disposal under RCRA, Subtitle C. A careful 

review of the rulemaking docket, however, shows that the post-2000 data either do not address 

boiler slag or, if they do mention boiler slag, they basically repeat the same scientific information 

that supported EPA's prior decisions not to classify boiler slag as a RCRA hazardous waste. 

Because of its vitrified nature, boiler slag does not present leachate concerns, and it is not 

associated with any of the reported damage cases. The data Harsco has presented in this 

submission confirm that boiler slag does not present potentially significant risks to human health 

or the environment.

The NPRM and its supporting docket materials do not and, in light of the scientific record, 

cannot provide a detailed and reasonable explanation for altering the Agency's current CCR 

policy. Without satisfying that threshold, a decision to issue a new rule damaging the legions of 

companies that have relied on the existing CCR policy will run afoul of the "arbitrary or 

capricious" standard outlined in the APA. Therefore, the boiler slag data in this administrative 

record are not sufficient to justify a revision to EPA's existing CCR policy, and waste boiler slag 

and the other waste CCRs should only be regulated under Subtitle D rather than Subtitle C.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10497-3

Organization1:Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: Carl Eldred
412

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

b. Even if the Bevill Amendment Allowed for an Ongoing Review, EPA Has Circumvented the 

Statutorily-Mandated Process

Pursuant to the Bevill Amendment, EPA had to “conduct a detailed and comprehensive study 

and submit a report” based on its analysis of eight (8) specified criteria. 42 U.S.C. § 6882(n). The 

study had to include a review of appropriate studies and other actions of Federal and State 

agencies, and participation by industry and other Federal and State agencies. Id. Once completed, 

a report on the study had to be published and submitted to the United States Senate Committee 

on Environment and Public Works and the United States House of Representatives Committee 

on Energy and Commerce. Id. Public hearings and the opportunity for comment also had to be 

provided. 42 U.S.C. § 6921(b)(3)(C). Only after the completion of this process was EPA 

authorized to determine whether subtitle C regulation of CCRs was warranted. Id. It is this 

determination, based on the information developed pursuant to the study, public hearings, and 

public comment, which had to be published in the Federal Register. Id. Only after this process 

had been completed could agency rulemaking begin.

EPA, however, has ignored this process completely. EPA has not performed a comprehensive 

study, has not prepared a report that can be reviewed by the identified congressional committees 

or that can be subject to public hearing and comment, and has not published a revised regulatory 

determination concluding that subtitle C regulation is warranted. Instead, EPA has cherry-picked 

miscellaneous reports, studies, alleged damage cases, surveys and comments since the 2000 

Regulatory Determination, has developed two rule proposals, and has published them in the 

Federal Register. In so doing, EPA has ignored key elements from each stage of the statutory 

process and has jumped straight to rulemaking.

Under any circumstances, EPA’s bold circumvention of a statutorily-required process would be 

egregious, but it is even more so given the potential reversal of its own 1993 regulatory 

determination and subsequent affirmation in 2000. In both 1993 and 2000, after following the 

statutorily prescribed process, EPA determined and affirmed respectively, that subtitle C 

regulation of CCRs was unwarranted. Even assuming that EPA has authority to revisit and 

reverse its previous regulatory determinations, it must follow the prescribed process and make a 

determination as to whether subtitle C regulation of CCRs is warranted. Only after that 

determination has been published may EPA embark upon the rulemaking process. EPA has not 

done this, and its proposed regulation of CCRs under subtitle C is unlawful

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 
413

Comment Number: EPA-HQ-RCRA-2009-0640-10498-23

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1:Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Supreme Court of the United States has laid out a two-part test to determine the validity of 

agency constructions of agency-administered statutes: 

When a court reviews an agency's construction of the statute which it administers, it is 

confronted with two questions. First, always, is the question whether Congress has directly 

spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the 

matter; for the court, as well as the agency, must give effect to the unambiguously expressed 

intent of Congress. If, however, the court determines Congress has not directly addressed the 

precise question at issue, the court does not simply impose its own construction on the statute, as 

would be necessary in the absence of an administrative interpretation. Rather, if the statute is 

silent or ambiguous with respect to the specific issue, the question for the court is whether the 

agency's answer is based on a permissible construction of the statute.

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984) (emphasis added and notes 

omitted). Thus, only when there is a “gap for the agency to fill,” may the agency move past the 

first prong of the Chevron test. When Congress has clearly indicated its intent, however, there is 

no room for an agency to re-interpret its duties. This has been true since the earliest days of the 

judiciary, when the Supreme Court held that, where the law assigns a “specific duty,” the agency 

head must execute the duty to the letter of the law. See Marbury v. Madison, 5 U.S. (1 Cranch) 

137, 170 (1803).

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2009-0640-11287_CHI-065-2

Organization1:City Water Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
414

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.5.1

Comment Excerpt Text:

If ash must be regulated under RCRA, only the Subtitle D-prime option should be considered. 

But USEPA should delay this rulemaking-the ash proposal is premature. Extensive Information 

Collection Requests (ICRs) on the details of ash ponds at Electric Generating Units (EGUs) are 

only now being completed. USEPA recently sent two different teams to our plant site to 

investigate our ash handling practices, our ash ponds and our landfill, but the results or reports 

from these two recent site investigations by USEPA have not yet even been completed, but 

should be part of the factual background on which the ash rule is based. Rulemaking without 

such detailed information, observations and analyses would be suspect, and wasteful of 

substantial public and private resources.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11422_P-153-3

Organization1:Allegheny Energy, Inc.

Commenter1:David C. Cannon, Jr.

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9 8.6.2

Comment Excerpt Text:

Damage Cases

Two Allegheny sites are referred to in recently issued NGO reports as alleged "damage cases" 

purportedly warranting treatment of CCR as a Subtitle C waste. They are long-permitted landfills 

at our Mitchell and Hatfield's Ferry power stations in Pennsylvania. In both cases the discussions 

distort the facts about disposal operations and effects on drinking water supplies. They seemingly 

abjure state and federal water laws and regulations and incorrectly invoke drinking water 

standards where they have no state or federal applicability. They further ignore the extensive 

existing regulatory requirements and standards to which Allegheny and other operators are held 

accountable by EPA, Pennsylvania and West Virginia.

The February 24, 2010 report misconstrues the hydrology of the Mitchell site and contains errors 

regarding the station operation of wastewater treatment lagoons and the permitted and 

engineered coal combustion residuals landfill. Likewise, the alleged Hatfield's Ferry damage 

case, noted in the more recently published report, also misinterprets the hydrology, applies the 

wrong standards, misidentifies drinking water well locations, ignores existing monitoring wells 

and incorrectly describes station disposal practices.

Any EPA reliance on these Allegheny site reports would fail to meet the most basic principles of 

administrative law and technical support to which EPA is subject. Contrary to these third party 
415

allegations, the Pennsylvania regulations have been effective at protecting human health and the 

environment. Both of these sites have been permitted, inspected and monitored by Pennsylvania 

under its own rules for decades.

If the other alleged damage cases claimed by the reports are as flawed as those relating to 

Allegheny and populated by the same factual errors and invalid correlations, EPA must dismiss 

them as failing to support Subtitle C regulation.

Response: The Agency acknowledges and appreciates the comment. Moreover, the 

commenter is referred to Unit XI of thee preamble for a discussion of the damage cases 

evaluated by EPA. The commenter is also referred to supporting documents in the docket that 

relate to the damage cases. 

Comment Number: EPA-HQ-RCRA-2011-0392-0211-29

Organization1:Utility Solid Waste Activities Group (USWAG), et al.

Commenter1:James Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2

Comment Excerpt Text:

As USWAG made clear in its first round of comments on the CCR proposal, the Agency does 

not have the statutory authority to reverse its final regulatory determinations that CCRs do not 

warrant regulation under Subtitle C of RCRA and, in addition, no category of CCRs warrants 

listing as a “special waste” under EPA’s hazardous waste listing criteria. [Footnote 2: USWAG 

Comments on “Hazardous and Solid Waste Management System; Identification and Listing of 

Special Wastes: Disposal of Coal Combustion Residuals From Electric Utilities” (EPAHQRCRA-2009-0640-10483).] As detailed below, none of the information included in the NODA 

undermines these positions.

The NODA involves a limited re-opening of the comment period on the CCR proposal for the 

express purpose of evaluating the validity of the information identified in the NODA and the 

propriety of using the information in the CCR rulemaking. Id. at 63252. The NODA offers the 

opportunity to comment on six general categories of information, including (1) new CCR 

chemical constituent data, (2) new CCR facility and waste management data, (3) additional 

allegations of damage cases from the management of CCRs, (4) new analyses of state CCR 

programs, (5) new materials on CCR beneficial use, and (6) new information and potential 

modeling analyses to update and enhance the draft CCR risk assessment. Id. at 63254-57.

As a preliminary matter, USWAG notes that while it appreciates the opportunity to comment on 

the above information, the practical value of this opportunity is very circumscribed. EPA 

provided no suggestion as to how—or even whether—it will use the noticed information for 

purposes of formulating a final CCR rule. [Footnote 3 In rejecting our comment period extension 

request, EPA explained that the Agency “has not concluded: that this information . . . would 

necessarily play a role in support for decisions in the final rule.” EPA, Letter to Jim Roewer 
416

(Oct. 17, 2011) (EPA-HQ-RCRA-2011-0392-0134).] Rather, EPA explained that it “cannot 

definitively state whether this information will provide support for any provision of the final 

rule, or that the Agency has determined that it is appropriate to rely on this information in 

developing the final rule” and adds that “it should not be assumed that the specific information 

identified in this Notice is the full sum of information received in comments that will be 

considered or that will influence the Agency’s decision in this rulemaking.” Id. at 63254. EPA 

states merely that to ensure that the public has the full and complete opportunity to comment on 

information that has the “potential to weigh in EPA’s decisions on the final rule, EPA is 

reopening the comment period for the limited purpose of allowing the public to comment on the 

validity and propriety of using this information . . . in developing the final rule.” Id. (emphasis 

added).

USWAG respectfully suggests that EPA’s complete lack of guidance concerning whether and 

how the noticed information may be used in developing a final CCR rule has made it 

exceedingly difficult for the public to comment meaningfully on the NODA. This difficulty was 

greatly compounded by the fact that, for certain information on which the NODA invites 

comment, including for example the “new materials on beneficial use,” the Agency provides no 

indication of which documents out of the 129 included in the NODA docket comprise the “new 

materials on beneficial use.” Rather, the public had to make an educated guess as to what 

information in the docket constitutes the “new materials on beneficial use” and then speculate 

further as to how this information may be relevant to EPA in developing the final rule. The 

vacuum in which the public had to operate in trying to assess the relevance and purpose of the 

inclusion of the information in the NODA docket significantly undermined EPA’s goal of 

providing the public with “a full and complete opportunity to comment” on the information 

identified as having the potential to influence its decisions on the final rule. Id. at 62354. 

Moreover, due of the lack of guidance about how the noticed information may be used, 

commenters have little choice but to be overinclusive in their remarks, commenting on every 

conceivable potential use of the information. By thus forcing the public to take a scattershot 

approach to comments, EPA has undoubtedly invited comments that are not nearly as focused 

(and therefore useful) as they could have been if EPA had been transparent with respect to 

whether and, if so, how it intends to use the noticed information in making decisions regarding 

the final rule.

Further, the Agency provided an unreasonably short period of time to comment on the NODA. 

As noted above, 129 documents comprising thousands of pages of material were posted in the 

NODA docket. Much of this material is technical information and data that requires careful 

review, and in some cases the assistance of subjectmatter expert consultants. An inordinate 

number of the documents were available for review only in hard copy format at EPA’s reading 

room due to copyright issues. 

USWAG and numerous other parties filed prompt requests to extend the comment period on the 

NODA. [Footnote 4: USWAG, Letter to EPA (Oct. 12, 2011) (EPA-HQ-RQ-2011-0392-0130).] 

USWAG’s request of 60 additional days to prepare comments was reasonable given that there is 

no statutory or judicial deadline for the promulgation of a final CCR rule. As USWAG noted in 

its request, a similar NODA issued on CCRs in 2007—which included a smaller data set than the 

present NODA—included an initial comment period of 90 days, which was subsequently 
417

extended to over five months. Nevertheless, EPA summarily denied USWAG’s request five days 

after it was submitted on the grounds that an additional 60-day comment period “would [not] 

represent the best balance of the various interests at stake.” [Footnote 5 EPA, Letter to Jim 

Roewer (Oct. 17, 2011) (EPA-HQ-RCRA-2011-0392-0134).]

USWAG, state regulators, the CCR beneficial use community, and many others have a critical 

interest in this rulemaking, as it will have a profound practical and economic effect on these 

groups. It therefore is vitally important that affected groups have meaningful opportunities to 

convey all relevant information to EPA in this rulemaking process. An extension would have 

given the public the opportunity to provide EPA with more thoughtful, and thus more useful, 

comments on the NODA which would have in turn facilitated the development of a more 

efficient and effective CCR regulatory program. EPA’s refusal to allow a short extension to the 

comment period on this NODA was unwarranted and contrary to the intent, if not the letter, of 

the notice and comment requirements of the Administrative Procedure Act (“APA”), the public 

participation provisions of RCRA, (42 U.S.C. § 6974) and Section 6(a) of Executive Order 

12866.

Given the above, USWAG used best efforts to review the information in the NODA docket to 

assess, to the extent time permitted, the validity of the information. Assuming that USWAG 

could determine that the information was valid, USWAG then assessed the propriety of using the 

information in the rulemaking, including whether and how the data were relevant to (1) EPA’s 

consideration of reversing the Bevill Amendment regulatory determinations that CCRs do not 

warrant Subtitle C regulation; (2) EPA’s proposal to list CCRs as a listed waste under Subtitle C; 

and (3) the proposed management standards for CCRs in the proposed Subtitle C and Subtitle D 

regulatory options. As noted above, none of the information in the NODA docket undermined 

USWAG’s position in its original comments that the rulemaking record does not support the 

regulation of any category of CCRs under RCRA Subtitle C.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. Also, in that the Agency is not promulgating a final rule 

that regulates CCR under subtitle C of RCRA, all the commenters concerns/arguments 

pertaining to this option as outlined in the proposed rule are no longer germane to this 

rulemaking. 

Comment Number: EPA-HQ-RCRA-2011-0392-0231-2

Organization1:American Coal Ash Association (ACAA)

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
418

Other Sections: 10.2.2

Comment Excerpt Text:

II. The enabling statute under which this rulemaking is conducted presumes the importance and 

consideration of beneficial use of CCRs. 

EPA’s proposed CCR disposal regulations are under the authority of the Resource Conservation 

and Recovery Act. The EPA office conducting the rulemaking has “Conservation and Recovery” 

in its name. Nevertheless, the NODA question on beneficial use seeks input on whether 

conservation and recovery should even be considered in its rulemaking. 

In its findings establishing the Resource Conservation and Recovery Act, Congress stated: “The 

Congress finds with respect to materials, that— (1) millions of tons of recoverable material 

which could be used are needlessly buried each year; (2) methods are available to separate usable 

materials from solid waste; and (3) the recovery and conservation of such materials can reduce 

the dependence of the United States on foreign resources and reduce the deficit in its balance of 

payments.” (Solid Waste Disposal Act, Section 1002 (c).) 

Furthermore, Congress stated specific objectives for encouraging materials recovery and reuse 

throughout Section 1003 of the Solid Waste Disposal Act. 

If EPA fails to consider impacts on materials recovery and beneficial use from its CCR disposal 

rulemaking, the agency will be in direct opposition to the letter and spirit of the Act from which 

it derives its rulemaking authority. 

III. Disregarding the impact of this rulemaking on beneficial use would be a significant violation 

of administrative policy. 

Successive administrations have issued executive orders (12866 and 13563) that compel EPA to 

consider the impact of its proposed regulations on all sectors of society and the economy. 

Specifically, Executive Order 13563, entitled “Improving Regulation and Regulatory Review” 

(Jan. 18, 2011), instructs federal agencies, including EPA, to assess benefits and costs of 

regulations in an effort to “impose the least burden on society, consistent with obtaining 

regulatory objectives, taking into account, among other things, and to the extent practicable, the 

costs of cumulative regulations.” The order also directs consideration of alternative regulatory

approaches and allowance for public participation in the rulemaking process. 

As stated earlier, any decision by EPA to disregard information on CCR beneficial use would 

exclude from the cost-benefit analysis consideration of the fate of more than 40 percent of the 

CCRs generated annually in the U.S. It would further disenfranchise the participation of tens of 

thousands of individuals and entities who submitted testimony on beneficial use in public 

hearings and the public comment process surrounding the agency’s proposed rule. Both 

consequences would be direct and substantial violations of the executive orders. 

In addition to executive orders, EPA is compelled to consider information it has received about 

beneficial use under the Administrative Procedure Act (“APA”). The APA allows reviewing 

courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or 
419

otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A).) EPA has received voluminous 

public comments on its proposed CCR rule that are both relevant and significant pertaining to 

beneficial use. EPA is not entitled to simply set this information aside without providing analysis 

and response

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0233-1

Organization1:MidAmerican Energy Holdings Company

Commenter1:Cathy Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

General Comments 

1. As a preliminary matter, MidAmerican believes EPA failed to provide sufficient time to 

thoroughly analyze and prepare a response to the NODA. In essence, EPA referenced several 

thousand pages of documents, analyses, reports, and other information that have been posted in 

the docket with an indication that “it should not be assumed that the specific information 

identified in this Notice is the full sum of information received in comments that will be 

considered or that will influence the Agency’s decisions in this rulemaking.” EPA’s stated 

purpose in “ensuring that the public has had a full and complete opportunity on the information 

that EPA has so far identified as having the potential to weigh in EPA’s decisions on the final 

rule,” suggests an impossibility – a full and complete opportunity, within 30 days to review 

information, the specificity and relevance of which has not yet been determined. EPA has 

requested that the public respond to information that EPA has had for a year and more. In 

requests for extension of the comment period, EPA’s response suggested that it was only seeking 

comment on one narrow issue: the technical validity of the information contained in the docket –

a docket EPA itself acknowledges includes a significant amount of information and that “the 

public has already had well over six months to comment on this rulemaking.” If the public has 

already had an opportunity to comment, EPA’s issuance of the NODA can only be seen as an 

attempt to prospectively legitimize its utilization of whatever data it sees fit in the final 

rulemaking proposal in an effort to avoid the provisions of the Administrative Procedures Act 

and the requisite fair notice provisions. 

2. It is critical that EPA adhere to its Guidelines for Ensuring and Maximizing the Quality, 

Objectivity, Utility and Integrity of Information Disseminated by the Environmental Protection 

Agency as referenced in footnote 2 of the NODA in utilizing data upon which to base its 

decisions. While the NODA suggests that EPA will “ensure the data is of sufficient quality 

before relying on it in deliberations on the final rule,” the quality of data is only one component 

of EPA’s guidelines, which also require objectivity, utility and integrity of the information. As 
420

noted in its “Guidelines”: 

It is important that analytic results for influential information have a higher degree of 

transparency regarding (1) the source of the data used, (2) the various assumptions employed, (3) 

the analytic methods applied, and (4) the statistical procedures employed. 

As noted in the Office of Management and Budget “Guidelines for Ensuring and Maximizing the 

Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies,” 

[Footnote 1: See 67 Fed. Reg. 8452, February 22, 2002.] “’objectivity’ includes whether 

disseminated information is being presented in an accurate, clear, complete and unbiased 

manner” and also involves “a focus on ensuring accurate, reliable and unbiased information” 

which may include formal, independent, external peer review. MidAmerican supports the use of 

objective, scientific, peer-reviewed information to support regulatory determinations

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0248-4

Organization1:Headwaters Resources, Inc.

Commenter1:William Gehrmann III

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2

Comment Excerpt Text:

II. EPA Is Required to Consider the Beneficial Use Data and Information Under the 

Administrative Procedure Act 

In addition to the special procedures and criteria EPA must apply in this rulemaking due to the 

Bevill amendment, EPA must also consider the beneficial use data and information it received, 

or else any action it takes is likely to be arbitrary and capricious under the Administrative 

Procedure Act ("APA"). The APA allows reviewing courts to set aside agency action that is 

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 

§ 706(2)(A). In order for an agency action not be arbitrary or capricious, the agency must 

adequately explain its result and respond to "relevant" and "significant" public comments. Public 

Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (citing Federal Election Comm'n v. 

Rose, 806 F.2d 1081, 1088 (D.C. Cir. 1986) and Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 

& n.58 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977)); see also Cape Cod Hosp. v. Sebelius, 630 

F.3d 203, 211 (D.C. Cir. 2011) (vacating and remanding the district court's grant of summary 

judgment for HHS because HHS failed to provide a reasoned response to the hospitals' 

comments regarding the challenged rules). The beneficial use data and information submitted to 

EPA during the comment period are undoubtedly "relevant" and "significant" public comments 

which EPA must consider and to which it must respond as it develops the final rule. 
421

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0250-1

Organization1:ARIPPA

Commenter1:Jeff McNelly

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2

Comment Excerpt Text:

A. ARIPPA strongly urges the EPA to fully consider the significant impacts of its CCR disposal 

rulemaking on environmentally beneficial uses of coal combustion products. 

EPA acknowledges in its NODA that it has already gathered “a significant amount of additional 

data and other factual information relating to the beneficial use of CCR.” ARIPPA believes that 

disregarding this information at this time would make a travesty of a rulemaking process that 

purports to be based on fairness, rule of law and scientific integrity. Accordingly we believe EPA 

is bound by purpose, statute, administrative policy, and agency precedent to consider the impacts 

of beneficial use in the development of its final rule. 

B. EPA’s purpose requires the agency to consider impacts of its rulemaking on the beneficial use 

of CCRs. 

EPA’s statement of purpose includes the following objectives: 

-That “federal laws protecting human health and the environment are enforced fairly and 

effectively; 

-environmental protection is an integral consideration in U.S. policies concerning natural 

resources, human health, economic growth, energy, transportation, agriculture, industry, and 

international trade, and these factors are similarly considered in establishing environmental 

policy; 

-environmental protection contributes to making our communities and ecosystems diverse, 

sustainable and economically productive; and 

-The United States plays a leadership role in working with other nations to protect the global 

environment.” 

Failure to fully consider the impact of EPA’s CCR disposal rulemaking on beneficial use would 

be counter to these objectives. 

ARIPPA’s original data submission to this docket contains voluminous information regarding 

the benefits and volume of CFB ash utilization for abandoned mine land reclamation which 

inturn vastly improves other environmentally impaired natural resources such as polluted 

streams. Beneficial use of CFB ash-CCRs is a key component in improving the sustainability and 

economic productivity of numerous regional segments of the U.S. economy. Exclusion of this 

information would be ineffective, unfair and counter to EPA’s objective to provide “integral 
422

consideration” in establishing environmental policy. 

C. The enabling statute under which this rulemaking is conducted presumes the importance and 

consideration of beneficial use of CCRs. 

In its findings establishing the Resource Conservation and Recovery Act, Congress stated: “The 

Congress finds with respect to materials, that— (1) millions of tons of recoverable material 

which could be used are needlessly buried each year; (2) methods are available to separate usable 

materials from solid waste; and (3) the recovery and conservation of such materials can reduce 

the dependence of the United States on foreign resources and reduce the deficit in its balance of 

payments.” (Solid Waste Disposal Act, Section 1002 (c)) 

EPA’s proposed CCR disposal regulations are under the authority of the Resource Conservation 

and Recovery Act. The EPA office conducting the rulemaking has “Conservation and Recovery” 

in its name. In spite of these known factors the NODA question on beneficial use seeks input on 

whether conservation and recovery should even be considered in its rulemaking....an 

overwhelming affirmation seems rather evident given the underlying legislation and the moniker 

the EPA currently utilizes. 

It is ARIPPA’s opinion that if EPA fails to consider impacts on materials recovery and beneficial 

use from its CCR disposal rulemaking, the agency will be in direct opposition to the letter and 

spirit of the Act from which it derives its rulemaking authority. 

D. Disregarding the impact of this rulemaking on beneficial use would be a significant violation 

of administrative policy. 

Successive administrations have issued executive orders (12866 and 13563) that compel EPA to 

consider the impact of its proposed regulations on all sectors of society and the economy. 

Specifically, Executive Order 13563, entitled “Improving Regulation and Regulatory Review” 

(Jan. 18, 2011), instructs federal agencies, including EPA, to assess benefits and costs of 

regulations in an effort to “impose the least burden on society, consistent with obtaining 

regulatory objectives, taking into account, among other things, and to the extent practicable, the 

costs of cumulative regulations.” The order also directs consideration of alternative regulatory 

approaches and allowance for public participation in the rulemaking process. 

As stated earlier, any decision by EPA to disregard information on CFB-ash-CCR beneficial use 

would exclude from the cost-benefit analysis consideration of the fate of ARIPPA plants, its 

employees, and the annual reclamation of hundreds of acres in AMLAMD regions. It would 

further disenfranchise the participation of associations, individuals and entities who submitted 

testimony on beneficial use in public hearings and the public comment process surrounding the 

agency’s proposed rule. Both consequences would be direct and substantial violations of the 

executive orders. 

In addition to executive orders, EPA is compelled to consider information it has received about 

beneficial use under the Administrative Procedure Act (“APA”). The APA allows reviewing 

courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or 
423

otherwise not in accordance with law.” (5 U.S.C. § 706(2)(A).) EPA has received voluminous 

public comments on its proposed CCR rule that are both relevant and significant pertaining to 

beneficial use. EPA is not entitled to simply set this information aside without providing analysis 

and response. 

E. The agency made consideration of beneficial use a precedent when it included extensive 

requests for data on the topic in its original Proposed Rule. 

EPA established the precedent for consideration of beneficial use in its current rulemaking 

through the inclusion of questions related to beneficial use in its original Proposed Rule. In order 

to respond to EPA’s questions, ARIPPA expended thousands of man-hours reading, analyzing, 

and responding to the Proposed Rule. Our response clearly outlined how the beneficial use of 

CFB ash has improved the environment in many regions of the U.S. suffering from the effects of 

Abandoned Mine Lands and correlating Acid Mine Drainage. Dismissal of such information 

would serve only to usurp the spirit of the regulatory process commonly practiced to date in our 

nation and discourage future citizen efforts to supply input to government agencies established 

under the guise of...of the people...for the people... of this nation. 

F. The agency should consider the input from various Federal sources concerning the beneficial 

use of ash: 

Joseph Pizarchik, Director of OSMRE, stated in a 2010 letter to EPA 

“It is OSM’s view that CCRs-CCPs that are suitable for placement or beneficial use on a mine 

based on appropriate testing be able to be placed in the appropriate mine with no pollution from 

the CCRs-CCPs as the ultimate standard.” 

OSMRE’s 2010 memo to OMB commenting on EPA draft of the proposed rule: 

“The RIA fails to explain how it would be possible to disassociate the beneficial use, including 

mine placement, from the hazardous waste stigma that would be attached to the CCRs under this 

proposal. The proposal and RIA just exclude CCR beneficial uses without any explanation and, 

more importantly, without any scientific basis. There are several references that should have 

been cited to provide an adequate scientific basis for differentiating beneficial use from disposal. 

NRC-NAS report findings (which EPA contracted for) conclusion report states: 

“Therefore, the committee recommends that secondary uses of CCRs that pose minimal risks to 

human health and the environment be strongly encouraged....’Government agencies should 

examine ways in which they can promote CCR use or remove impediments to its use.” Pg 148 

Response: The Agency acknowledges and appreciates the comment. 

Section 2.1.6.1 - Legal challenges to the NODA notice

Total Number of Submissions: 10

Total Number of Comments: 12
424

Comment Number: EPA-HQ-RCRA-2012-0028-0060-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Douglas Green

Commenter Type: Trade Association

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As a preliminary matter, USWAG notes that while it appreciates the opportunity to comment on 

the above information, the practical value of this opportunity is very circumscribed. The Agency 

provided an unreasonably short period of time – only 30 days – to comment on the NODA, 

which contains a significant amount of new information and requests comments on factors 

fundamental to the final rule, including the appropriate regulatory path forward and critical 

issues regarding scope and implementation. USWAG and numerous other parties filed prompt 

requests to extend the comment period on the NODA. [Footnote 2: USWAG, Letter to OSWER 

(Aug. 5, 2013) (EPA-HQ-RQ-2012-0028).] USWAG’s request of 60 additional days to prepare 

comments was reasonable. USWAG, state regulators, the CCR beneficial use community, and 

many others have a critical interest in this rulemaking, as it will have a profound practical and 

economic effect on these groups. It therefore is vitally important that affected parties have 

meaningful opportunities to convey all relevant information to EPA in this rulemaking process. 

An extension would have given the public the opportunity to provide EPA with more thoughtful, 

and thus more useful, comments on the NODA which would have in turn facilitated the 

development of a more efficient and effective CCR regulatory program. EPA’s refusal to allow a 

short extension to the comment period on this NODA was unwarranted and contrary to the 

intent, if not the letter, of the notice and comment requirements of the Administrative Procedure 

Act (“APA”), the public participation provisions of RCRA, (42 U.S.C. § 6974) and section 6(a) 

of Executive Order 12866

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2012-0028-0060-16

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Douglas Green

Commenter Type: Trade Association

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. EPA Should Propose Overfill Requirements Before Finalizing Such Standards

While USWAG appreciates EPA’s request for comment on how best to develop controls tailored 

to the unique design issues associated with overfill units, the request for comment on this issue in 
425

the NODA does not excuse the Agency from its obligation under the Administrative Procedure 

Act (“APA”) to provide the public with an opportunity for notice and comment on the final 

regulations that EPA eventually develops for such units. EPA has not fulfilled this APA 

obligation in the NODA; instead, the Agency understandably has identified an issue that it did 

not consider in its original CCR proposal and has requested input from the public regarding how 

best to address the issue going forward. From a rulemaking perspective, this is more akin to the 

issuance of an advanced notice of proposed rulemaking, where the Agency first sets forth general 

concepts and requests comments on how to develop proposed regulatory text and then followsup with a proposed rule setting forth its regulatory approach and the associated text.

Strict adherence to the APA requirements is especially important here, where EPA has simply 

posed a series of technical questions regarding how best to regulate overfill units, yet has not 

signaled how it intends to answer those questions or, most importantly, what technical 

requirements it actually plans to impose on such units. Therefore, because the Agency has not 

proposed its regulatory approach for overfills, the public has not had an opportunity to comment 

on any such proposed regulations . USWAG believes that EPA must propose such standards for 

public notice and comment prior to the Agency issuing final controls for overfill units

Response: The Agency acknowledges and appreciates the comment, however the issue of 

overfills as described in NODA 3 is addressed in Unit VI of the preamble as well as in the 

Response to Comment document addressing overfills. The reader is referred to the 

introductory section of this volume of the Response to Comment document that identifies the 

proper volume for overfills. 

Comment Number: EPA-HQ-RCRA-2012-0028-0066-1

Organization1:Arizona Public Service Company (APS)

Commenter1:Chas Spell

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

APS notes that while it appreciates the opportunity to comment on the above information, the 

practical value of this opportunity is very circumscribed. The Agency provided an unreasonably 

short period of time - only 30 days - to comment on the NODA, which contains a significant 

amount of new information and requests comments on issues fundamental to the final rule, 

including the appropriate regulatory path forward and critical issues regarding scope and 

implementation. APS filed a prompt request to extend the comment period on the NODA. 

Although APS’s request for 60 additional days to prepare comments was reasonable, EPA denied 

that request on August 22, 2013

Response: The Agency acknowledges and appreciates the comment. 
426

Comment Number: EPA-HQ-RCRA-2012-0028-0069-1

Organization1:Ameren Missouri

Commenter1:

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

First although we appreciate the opportunity to comment on the above information, the practical 

value of this opportunity is very limited. We were provided only 30 days to comment on the 

NODA, which contains a significant amount of new information and requests comments on 

issues fundamental to the final rule, including the appropriate regulatory path forward and 

critical issues regarding scope and implementation. AMO filed a request to extend the comment 

period on the NODA for 60 additional days. We, like many other entities and state regulators, 

have a critical interest in this rulemaking, as it will have a profound practical and economic

effect on our operations. EPA’s refusal to allow a short extension to the comment period on this 

NODA was unwarranted and contrary to the intent, if not the letter, of the notice and comment 

requirements of the Administrative Procedure Act, the public participation provisions of RCRA, 

(42 U.S.C. § 6974) and section 6(a) of Executive Order 12866

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2012-0028-0070-1

Organization1:Ameren Energy Resources Company, L.L.C (AERC)

Commenter1:

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

First although we appreciate the opportunity to comment on the above information, the practical 

value of this opportunity is very limited. We were provided only 30 days to comment on the 

NODA, which contains a significant amount of new information and requests comments on 

issues fundamental to the final rule, including the appropriate regulatory path forward and 

critical issues regarding scope and implementation. AERC filed a request to extend the comment 

period on the NODA for 60 additional days. We, like many other entities and state regulators, 

have a critical interest in this rulemaking, as it will have a profound practical and economic 

effect on our operations. EPA’s refusal to allow a short extension to the comment period on this 

NODA was unwarranted and contrary to the intent, if not the letter, of the notice and comment 

requirements of the Administrative Procedure Act, the public participation provisions of RCRA, 

(42 U.S.C. § 6974) and section 6(a) of Executive Order 12866
427

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2012-0028-0075-7

Organization1:National Rural Electric Cooperative Association (NRECA)

Commenter1:Dorothy Kellogg

Commenter Type: Trade Association

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Since overfill units were not addressed in the 2010 proposed rules, EPA should propose 

standards for such units and provide the public an opportunity to review and comments on them

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

referred to the Unit VI discussion of overfills that is in the preamble to today’s rule. The 

commenter is also referred to the appropriate volume of the response to comment document 

that addresses overfills. 

Comment Number: EPA-HQ-RCRA-2012-0028-0082-3

Organization1:USC Technologies (USC)

Commenter1:

Commenter Type: Beneficial User

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Based on the distinguishing factors identified above, reliance solely on volume or on surface 

landfills, i.e., the data sets identified by the NODA, are inadequate and fail to adequately 

consider the significant benefits that accrue from USC’s environmentally sound use of CCPs. It 

would be arbitrary and capricious for EPA to rely on these limited data sets to broadly conclude 

that all large-scale fill activities constitute waste management without regard to other factors that 

minimize the potential health risks of concern. USC’s use of subsurface, self-encapsulated CCPs 

to provide stabilization support for commercial, residential, and civic development illustrates that 

large-scale fill can properly be deemed “beneficial use.”

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2012-0028-0084-1

Organization1:MidAmerican Energy Holdings Company (MidAmerican)
428

Commenter1:

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

1. As a preliminary matter, MidAmerican believes EPA failed to provide sufficient time to 

thoroughly analyze and prepare a response to the NODA. EPA provided structural integrity 

evaluation reports for 522 surface impoundments at 209 facilities. Due to time constraints, it was 

impossible to conduct a thorough and comprehensive analysis of all the data. EPA referenced 

several thousand pages of documents, analyses, reports, and other information that have been 

posted in the docket with an indication that “it should not be assumed that the specific 

information identified in this NODA is the full sum of the information that will be considered or 

that will influence the Agency’s decisions in this rulemaking.” [Footnote 1: 78 Fed. Reg. at 

46941.] EPA?s stated purpose in “provid[ing] the public with a full and complete opportunity on 

the information that EPA identified to date as having the potential to weigh in [EPA?s] 

decisions,” [Footnote 2: Id. at 46942.] presents an impossibility – a full and complete 

opportunity, within 30 days, to review information, the specificity and relevance of which has 

not yet been determined. EPA has requested that the public respond to information that EPA has 

had for at least a year.

2. It is critical that EPA adhere to its Information Quality Guidelines as referenced in the text and 

in footnote 3 of the NODA [Footnote 3: Id.] in utilizing data upon which to base its decisions. 

While the NODA suggests that EPA will “ensure the data is of sufficient quality before relying 

on it in deliberations on the final rule,” the quality of data is only one component of EPA?s 

guidelines, which also require objectivity, utility and integrity of information.

As noted in the Office of Management and Budget “Guidelines for Ensuring and Maximizing the 

Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies,” 

[Footnote 4: See 67 Fed. Reg. at 8452, February 22, 2002.] “objectivity? includes whether 

disseminated information is being presented in an accurate, clear, complete and unbiased 

manner” and also involves “a focus on ensuring accurate, reliable and unbiased information” 

which may include formal, independent, external peer review. MidAmerican supports the use of 

objective, scientific, peer-reviewed information to support regulatory determinations

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2012-0028-0084-7

Organization1:MidAmerican Energy Holdings Company (MidAmerican)

Commenter1:

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
429

Comment Excerpt Text:

MidAmerican’s comments are not necessarily constrained based on (1) EPA’s expressed desire 

under the NODA to only accept comments on “additional information that may be relevant to the 

development of a final CCR rule,” and (2) the limited timeframe within which to review and 

respond to the “additional information that may be relevant to the development of a final CCR 

rule.” As such, MidAmerican reserves its right to comment on the NODA in the event that EPA 

has not sufficiently provided the requisite degree of specificity and opportunity for notice and 

comment

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2012-0028-0095-9

Organization1:Duke Energy

Commenter1:Richard Meiers

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.1.7

Comment Excerpt Text:

Duke Energy agrees with EPA when it correctly noted in the current NODA that the 

development and construction of CCR landfills over pre-existing CCR surface impoundments 

and landfills is an expanding practice which was neither considered nor accounted for in the 

2010 CCR proposal. [Footnote 17: See Volume 78 Federal Register No.149 at 46946.] Duke 

Energy agrees with EPA that the appropriate technical standards should be included into the 

proposed rule regulatory language to address the construction, operation and maintenance of 

these disposal units, termed “overfills” by EPA. Including technical standards into the existing 

proposed rule language [Footnote 18: See Federal Register Volume 75 No 118 June 21, 2009 at 

35252.] in the form of a regulatory test does raise the question of whether or not this would be 

considered a substantial change to the original proposal. This would require EPA to go through 

public notice and comment to provide an opportunity for stakeholder comments on that new 

language.

As background, EPA should be aware that many utilities choose to construct overfills because 

they have very limited possibilities for permitting and constructing new disposal units, which 

often take many years. In our the 2010 comments, Duke Energy highlighted the difficulties 

associated with acquiring new land, permitting new disposal capacity, constructing landfills, and 

Duke Energy’s direct experience with overfills. [Footnote 19: See Duke Energy Comments 

submitted to USEPA on Hazardous and Solid Waste Management System; Identification and 

Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; 

Proposed Rule; 75 Federal. Register 35128 (June 12, 2009)” submitted to EPA Docket # EPAHQ-RCRA – 2009 – 0640 November 19, 2010 pgs. 14-17.] The construction of new landfills and 

surface impoundments over surface impoundments no longer in service provides an alternative to 

off-site disposal capacity (which often requires transporting CCR significant distances away 

from the generating station).
430

Much like all CCR units permitted and constructed on greenfield sites, overfills are constructed 

in a site-specific manner and pose unique construction and operational issues depending on the 

site and the characteristics of the surface impoundment no longer in service

Response: The Agency acknowledges and appreciates the comment however all comments on 

overfills are addressed in the Response to Comment document addressing overfills. The 

commenter is referred to the introductory discussion in the beginning of this document for a 

more detailed statement as to where the overfill comments and EPA responses can be found. 

Comment Number: EPA-HQ-RCRA-2012-0028-0103-1

Organization1:PPL Services Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

PPL appreciates the opportunity to comment on the above information, but the practical value of 

this opportunity is very restricted by the limited 30-day comment period. The NODA contains a 

significant amount of new information and requests comments on factors fundamental to the 

final CCR rule, including the appropriate regulatory path forward and critical issues regarding 

scope and implementation. PPL, USWAG and numerous other parties filed prompt requests to 

extend the comment period on the NODA by 60-days. PPL and many others have a critical 

interest in this rulemaking, as it will have a profound practical and economic effect on us, our 

subsidiaries, our industry, and electric customers across the country. It therefore is vitally 

important that affected parties have meaningful opportunities to convey all relevant information 

to EPA in this rulemaking process. An extension would have given the public the opportunity to 

provide EPA with more thoughtful, and thus more useful, comments on the NODA which would 

have in turn facilitated the development of a more efficient and effective CCR regulatory 

program. EPA’s refusal to allow a short extension to the comment period on this NODA was 

unwarranted and contrary to the intent, if not the letter, of the notice and comment requirements 

of the Administrative Procedure Act (“APA”), the public participation provisions of RCRA, (42 

U.S.C. § 6974) and section 6(a) of Executive Order 12866

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2012-0028-0108-1

Organization1:American Coal Ash Association (ACAA)

Commenter1:Thomas Adams

Commenter Type: Trade Association

Classification: NODA2 Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
431

Comment Excerpt Text:

The following is in response to the request for comment in the referenced matter. We would like 

to preface our comments by noting that the interval between publication of this Notice of Data 

Availability (NODA) and the close of the comment period was too narrow for submittal of a 

complete response to the items noticed. The American Coal Ash Association (ACAA) submitted 

a request for an extension to this dead line. This request was denied. As a result we have tailored 

our comments to meet the deadline. As the US Environmental Protection Agency (EPA) is 

considering complex issues related to the future of disposal of coal combustion products (CCP) 

which impact the beneficial use of CCP we believe the thirty day interval for comment was 

arbitrary and detrimental to the rulemaking in this matter

Response: The Agency acknowledges and appreciates the comment. 

Section 2.2 - Role of Eight Bevill (RCRA §8002(n)) Study Factors in Bevill Regulatory 

Determination for CCRs Generated by Electric Utilities (35149-35160): EPA solicits 

further info/comment on how each will factor into EPA’s determination as to whether 

regulation under RCRA Subtitle C or D is warranted (35150)

Total Number of Submissions: 7

Total Number of Comments: 10

Comment Number: EPA-HQ-RCRA-2009-0640-06315-13

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. RECONSIDERATION OF THE STUDY FACTORS OF SECTION 8002(N) OF 

RCRA, 42 U.S.C. § 6982(n)

In undertaking the “detailed and comprehensive study” required by the Bevill Amendment, EPA 

was required to consider adverse effects on human health and the environment from the disposal 

and utilization of CCRs taking into account eight specific factors. [Footnote 41: 42 U.S.C. § 

6982(n).] In the preamble to the proposed rule, EPA reiterates the factors that the Agency 

promised in 2000 to continue to review:

“[T]he extent to which [the wastes] have caused damage to human health or the environment”; 

(2) the adequacy of existing regulation of the wastes; (3) the results of an NAS report regarding 

the adverse human health effects of mercury; and (4) “risk posed by managing coal combustion 

solid wastes if levels of mercury or other hazardous constituents change due to any future Clean 

Air Act air pollution control requirements for coal burning utilities.” [Footnote 42: 75 Fed. Reg. 

at 35,137.]

EPA also specifically points to the need to consider new information on risk that was not 

available in 2000 and EPA states that its review could result in a subsequent revision to its 
432

determination.

Thus, in the preamble to EPA’s proposed rule, the Agency reexamines the eight study factors set 

forth in section 8002(n) in light of “the most recent data . . . available.” [Footnote 43: Id. at 

35,151.] Such reexamination is essential because considerable evidence has come to light since 

the 1988 and 1999 Reports to Congress. Evidence concerning volume, toxicity, state program 

gaps, and damage reveal substantially heightened risk and documented adverse impacts on health 

and the environment from the disposal and utilization of CCRs.

As discussed infra, the applicability of the eight study factors to the agency’s ultimate listing 

decision is an important legal issue. Clearly, however, EPA considers evaluation of the eight 

factors of section 8002(n) central to the choice among the regulatory presented in the proposed 

rule:

"The final course of action will [ . . . ]result in the selection of a regulatory structure that best 

addresses the eight study factors identified in section 8002(n) of RCRA, and ensures protection 

of human health and the environment." [Footnote 44: Id. at 35,133.]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-70

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A fundamental purpose of the Bevill Amendment is to ensure that any final regulatory option 

selected for CCR utilizes cost-effective controls, avoids the imposition of undue costs on the 

utility industry, and does not discourage the use of coal. The Subtitle C regulatory option is 

inconsistent with congressional intent. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06410-12

Organization1:
433

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Bevill Regulatory Determination Relating to CCRs from Electric Utilities, subheading A. pg. 93

“...EPA’s application of its discretion in weighing the eight Bevill factors—and consequently 

our ultimate decision—will be guided by the following principles. The first is that EPA’s actions 

must be protective of human health and the environment. Second, any decision must be based on 

sound science. Finally, in conducting this rulemaking, EPA will ensure that its decision 

processes are transparent, and encourage the greatest degree of public 

participation...Accordingly, EPA is soliciting further information and public input on each of 

these considerations that will factor into the Agency’s determination as to whether regulations 

under RCRA subtitle C or D is warranted.”

Comment: The three principles are appropriate for weighing the eight Bevill factors and ultimate 

decision under this proposal. However, the summarization of technical issues under this section 

needs to undergo a third party review. See Comment #1 for third party reviewers. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-06410-22

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

New developments since the May 2000 determination need to undergo a thorough third party 

review. EPA is summarizing these findings on pg. 132 without referring to references from 

which these summarizes were formed. An audit report would be sufficient to summarize a 

decade of new developments highlighting main conclusions and quality of data (i.e., SAP and 

QAPP documenting collection of data). Weeding out inaccurate or unvalidated material before 

summarizing new changes would be most beneficial. Summarizing data prior to an audit has a 

great potential of communicating inaccurate information. I request that this summary of changes 

be audited to ensure accurate information, posted for public review, and all source information 

be included in the docket.
434

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-07796-1

Organization1:

Commenter1:Emily M. Yandle

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[ATTACHMENT: See original comment for draft article that looks at the eight factors EPA is 

required to use when considering the regulation of CCRs under RCRA and evaluates how the 

EPA has examined the factors in the past and which current decision is most consistent with 

these prior analyses]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-18

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

BPU submits that the balance of public interest considerations in evaluating the eight factors 

favors retention of the Bevill exemption for CCRs. No compelling case has been made that 

health or environmental risks have increased since the 2000 Determination. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 
435

Comment Number: EPA-HQ-RCRA-2009-0640-08246-5

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

BALANCING THE EQUITIES UNDER THE BEVILL DECISIONAL FACTORS 

FAVORS RETENTION OF THE BEVILL EXEMPTION 

Turning to the eight study factors that must be weighed in determining whether the Bevill 

exemption should continue to apply, 75 FR at 35151 et seq., on balance, these factors show 

improvement since the 2000 Determination. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. 

Comment Number: EPA-HQ-RCRA-2009-0640-10483-9

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

B. Assuming, For Purposes Of Argument, That EPA Is Authorized To Make A Second 

Regulatory Determination, EPA Has Failed To Adhere To The Bevill Amendment’s Prescribed 

Process

Even assuming that RCRA could be read as authorizing EPA to reverse its final Regulatory 

Determination for CCRs, the Agency would have to adhere to the statutorily prescribed 

procedures that Congress demanded EPA follow in determining whether and how to regulate 

CCRs. EPA itself has recognized this; in responding to Representative Markey‘s inquiry to EPA 

about the steps it would need to take to regulate CCRs under RCRA Subtitle C, the Agency 

stated that it would be “advisable [for EPA] to go through the same process we followed” in 

issuing the 1993 and 2000 final Regulatory Determinations. [Footnote 14: See Frank Letter, 

attached as Appendix 4.] Despite what it told Congress, EPA has inexplicably strayed beyond the 

plain language of the statute by proposing to reverse its final Regulatory Determinations for 
436

CCRs without following the statutorily-required process it followed for issuing those 

Determinations in the first instance.

As explained above, the Bevill Amendment requires that, before making any final regulatory 

determination for CCRs, EPA first must study CCRs pursuant to the eight statutory study factors 

and then “publish a report on such study, which shall include appropriate findings.” RCRA § 

8002(n). The statute then directs that “such study and findings [i.e., the Report to Congress] shall 

be submitted to the Committee on Environment and Public Works of the United States Senate 

and the Committee on Energy and Commerce of the United States House of Representatives.” Id. 

Following submission of the report to the appropriate congressional committees, the statute 

directs EPA to conduct public hearings and provide an opportunity for comment on the Report to 

Congress, and either determine to promulgate regulations regulating CCRs under RCRA‘s 

Subtitle C regulations or determine that such regulations are unwarranted. RCRA § 

3001(b)(3)(C). Following this process, EPA was directed to publish its regulatory determination, 

“which shall be based on information developed or accumulated pursuant to such study, public 

hearings, and comment, in the Federal Register accompanied by an explanation and justification 

of the reasons for it.” Id.

Despite these unambiguous statutory conditions for determining whether and how to regulate 

CCRs under RCRA, EPA has not complied with these conditions in proposing to reverse and 

reissue its final Regulatory Determination for CCRs. Among other things, EPA has not prepared 

a Report to Congress setting forth its rationale for proposing to reverse course and issuing a new 

regulatory determination declaring that CCRs now warrant Subtitle C regulation. This failure 

violates the express terms of the statute that any final regulatory determination be based on 

public hearings and comments on the Report to Congress. This requirement is not satisfied by the 

truncated and abbreviated review of the Bevill Amendment‘s statutory study factors presented by 

EPA in the instant proposal.

The language of the statute could not be clearer on this point: following submission of its Report 

to Congress, and after public hearings, and comment on the report, EPA was to publish its 

regulatory determination “which shall be based on information developed or accumulated 

pursuant to such study [i.e., EPA‘s Report to Congress], public hearings, and comment, in the 

Federal Register accompanied by an explanation and justification of the reasons for it.” RCRA § 

3001(b)(3)(C). The D.C. Circuit has confirmed that the statute unambiguously directs that the 

final regulatory determination is to be based on the Report to Congress. EDF v. EPA, 852 F.2d at 

1314 (“The statute clearly states that the agency is to base its regulatory determination on the 

information gathered for the § 8002(p) study”). [Footnote 15: The Section 8002(p) study refers 

to the EPA‘s Report to Congress on certain mining wastes that also were subject to the Bevill 

Amendment. Importantly though, the D.C. Circuit‘s decision is equally applicable to CCRs, as 

the statutory process for EPA issuing a final Regulatory Determination for mining wastes and 

CCRs is identical. See RCRA § 3001(b)(3)(C) (referencing both the CCR § 8002(n) study and 

mining waste § 8002(p) study).] As the Supreme Court stated in Nat’l R.R. Passenger Corp. v. 

Nat’l Ass’n of R.R. Passengers (Amtrak), “[w]hen a statute limits a thing to be done in a 

particular mode, it includes the negative of any other mode.” 414 U.S. 453, 458 (1974).

Thus, even assuming EPA was authorized to render a new and revised regulatory determination, 
437

such determination must be preceded and predicated on a new Report to Congress. Even EPA 

has recognized that any final regulatory determination must be predicated on the Report to 

Congress. See 75 Fed. Reg. at 35151 (explaining that EPA addressed the Bevill statutory study 

factors for CCRs in the 1988 and 1999 Reports to Congress and “[t]he findings of these two 

Reports to Congress were the basis for our decisions in the August 1993 and May 2000 

Regulatory Determinations to maintain the Bevill exemption for CCRs.”); see also 65 Fed. Reg. 

at 32219 (detailing how EPA‘s 2000 final Regulatory Determination was based on public 

comments on the Agency‘s 1999 Report to Congress).

Representative Bevill underscored the point that the public hearing and comment process was 

intended to directly respond to EPA‘s Report to Congress and that any final regulatory 

determination was to be based on the information resulting from that process: “Finally, let me 

direct the House‘s attention to the fact that after EPA concludes these studies, it will be required 

to obtain public views on them and to make known whether, as a result of this process, EPA 

believes any regulation of these materials is necessary.” 126 Cong. Rec. at 3362 (emphasis 

added).

Here, of course, there is no Report to Congress recommending that CCRs be regulated under 

RCRA Subtitle C. This is especially egregious given that the Reports to Congress that EPA did 

provide to Congress made clear that CCRs do not warrant regulation under RCRA‘s Subtitle C 

hazardous waste program and that, therefore, EPA would not pursue this regulatory path. Now, 

more than ten years later, EPA is proposing to reverse that decision and issue a new regulatory 

determination for CCRs without explaining its reasoning to Congress as required by the statute, 

and without allowing for public comment and hearings on the Report to Congress.

EPA may believe that its abbreviated review of the Bevill statutory factors in the proposed rule is 

the functional equivalent to preparing and submitting a Report to Congress, but the Agency‘s 

view is legally flawed for at least three reasons. First, as explained above, such a position would 

be at direct odds with the plain language of the statute, which unambiguously commands that any 

final regulatory determination be based on the Report to Congress. The statute simply does not 

authorize the type of fast-track decision-making process that EPA is attempting to employ under 

the Subtitle C option.

Second, the statute does not authorize the Agency to collapse the Bevill Amendment‘s statutory 

decision-making process into the more abbreviated exercise, which the Agency is undertaking 

here, by combining a proposed reversal of its earlier final Regulatory Determinations with the 

proposed development of Subtitle C regulations for CCRs. As EPA candidly admits, the end 

result would be the issuance of a new regulatory determination calling for Subtitle C regulation 

along with the final Subtitle C regulations. This ignores the plain language and purpose of the 

Bevill Amendment which requires the regulatory determination to precede the promulgation of 

any subsequent regulations.

Looking again at the statutory text, RCRA Section 3001(b)(3)(C) provides that after issuing and 

obtaining public input on its Report to Congress, EPA was to “either determine to promulgate 

regulations” for CCRs under RCRA Subtitle C “or determine that such regulations are 

unwarranted.” The Agency was then directed to publish its final determination in the Federal 
438

Register. Id. As the D.C. Circuit has explained, the text of the Bevill Amendment juxtaposes the 

terms ?determination‘ and ?regulation,‘ . . .signifying that, consistent with the principle that 

effect must be given to each word of a statute, the two terms were intended to have distinct 

meanings.” Am. Portland Cement Alliance v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996) 

(“American Portland Cement”). Given this distinction, the sequence of actions directed by 

Section 3001(b)(3)(C) makes clear that the regulatory determination – whether or not to regulate 

CCRs under Subtitle C – was to be a separate and distinct step from the subsequent promulgation 

of any such regulations.

This statutory step-wise process is consistent with the Bevill Amendment‘s legislative history 

that EPA employ a more deliberative, sequential procedure than that traditionally applied to 

other wastes under RCRA in determining whether and how EPA should regulate Bevill wastes in 

the first instance. See e.g., EDF v. EPA, 852 F.2d at 1314 (“Indeed, our reading of the statute and 

the legislative history strongly suggests that Congress designed the Bevill Amendment to break 

with the previous approach to regulation of hazardous industrial wastes.”). Under the Bevill 

Amendment, only after the regulatory determination has been issued does the statute contemplate 

EPA undertaking any appropriate rulemakings based on the determination. As the court 

explained in American Portland Cement:

Section 3001(b)(3)(C) provides the product of the notice and comment process [on the Report to 

Congress] will be a determination of whether regulation is warranted in the future, not 

regulations themselves. While Congress established a timetable for EPA‘s Regulatory 

Determination, it set no deadline for the promulgation of regulations that EPA might find 

necessary under § 3001(b)(3)(C). Accordingly, the notice and comment proceedings [on the 

Report to Congress] were aimed at informing EPA‘s decision at an intermediate rather than 

ultimate stage in the rulemaking process.

101 F.3d at 777.

Therefore, the accelerated decision-making process contemplated in EPA‘s proposed Subtitle C 

option – involving the simultaneous reversal and reissuance of the final Regulatory 

Determination for CCRs, coupled with the issuance of Subtitle C hazardous waste regulations for 

CCRs – is flatly inconsistent with the statute. Indeed, the public notice and comment process on 

the Report to Congress is focused only on the appropriateness of EPA‘s evaluation of the Bevill 

Amendment‘s eight statutory study factors and EPA‘s recommendation in that Report on 

whether CCRs warrant regulation under Subtitle C. The notice and comment process on any 

subsequent rulemaking implementing a final regulatory determination necessarily involves a 

wholly separate set of legal and factual issues. Therefore, as the D.C. Circuit recognized, the 

statute does not authorize EPA merging these two distinct agency actions into a single step. By 

attempting to merge the two separate agency actions together in the instant rulemaking, EPA has 

not clearly delineated its rationale for proposing to reverse and issue a new regulatory 

determination from the rationale underlying the proposed Subtitle C regulations. The result is a 

confusing and disjointed proposal that fails to comply with the sequential decision-making and 

implementation process required by the statute. This is why Congress established a formalized 

step-wise process for issuing the final regulatory determination and any subsequent regulations.
439

Finally, EPA‘s failure to issue a new Report to Congress setting forth its reasoning on why it 

now believes CCRs warrant hazardous waste regulation – after twice reaching just the opposite 

conclusion – deprives Congress of its statutorily prescribed right to be fully informed of any such 

recommendation. Congress required this so that it could evaluate and respond, as appropriate, to 

the Agency‘s proposed course of action before EPA makes a final Regulatory Determination and 

develops federal regulations. This is not a mere procedural formality. As Representative Bevill 

emphasized when introducing his amendment, it was especially critical that EPA not make the 

final regulatory determination in isolation, but that Congress and relevant federal agencies be 

involved in the decision-making process. 126 Cong. Rec. at 3362. The multi-step decisionmaking process set forth in the Bevill Amendment, including the submission of a Report to 

Congress, was specifically designed to enable Congress and other federal agencies to “evaluate 

the basis of the Agency‘s decision, and to address the question of what degree of regulation, if 

any, is appropriate [emphasis added]” and ultimately to ensure that the final regulatory 

determination was consistent with the nation‘s “commitment to develop a coherent and 

consistent policy toward the use of our coal and other energy resources.” Id. This multi-stake 

holder process reflects Congress‘ intent that it, along with other informed federal agencies and 

not EPA in isolation, are responsible for striking the delicate balance between the nation‘s 

environmental and energy goals.

Indeed, a key purpose of Congress requiring EPA to submit its Report to Congress was to ensure 

that any final regulatory determination appropriately reflect Congress‘ intentions that any 

regulation of CCRs not discourage the development of coal as one of the national primary 

sources of energy. This is precisely the type of oversight role that Congress reserves for itself 

when requiring agencies to submit reports to Congress prior to taking regulatory action. See 

Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 319 (D.C. Cir. 1988) (“NRDC v. 

Hodel”) (in explaining Congress‘ ability to respond to an agency report that is required to be 

submitted to Congress, the Court observed that “[i]t scarcely bears more than passing mention 

that the most representative branch is not powerless to vindicate its interests or ensure Executive 

fidelity to Legislative directives.”).[Footnote 16: See also generally James R. Bowers, 

“Regulating the Regulators” (1990); Joel D. Aberbach, “Keeping a Watchful Eye: The Politics of 

Congressional Oversight 132” (1990). For example, Congress can control agency action by 

writing more detailed legislation, by requiring staff investigations or field studies, or through 

agency reports required by Congress. See also United States v. S. Ind. Gas & Elec. Co., 2002 

U.S. Dist. LEXIS 20936 at *14 (S.D. Ind. Oct. 24, 2002) (noting that the purpose of Congress 

requesting an agency to report on a new rule was “was to provide a check on administrative 

agencies‘ power to set policies and essentially legislate without Congressional oversight.”).] In 

this case, EPA‘s failure to prepare a Report to Congress regarding its proposal to regulate CCRs 

under RCRA‘s hazardous waste program has eviscerated the statutory oversight role provided to 

Congress in the Bevill Amendment‘s decision-making process for CCRs.

For these reasons, even assuming EPA had the authority to revisit and reverse its previous, final 

Regulatory Determination for CCRs, the Agency‘s proposed Subtitle C option does not comport 

with the statutory process that Congress imposed on EPA in determining whether and how to 

regulate CCRs under RCRA Subtitle C. At a minimum, EPA must conduct thorough studies 

demonstrating a clear need for regulation; provide to Congress a report detailing its findings on 

those studies; conduct public hearings and solicit comments on the new Report to Congress; and 
440

finally base any final regulatory determination on the new Report to Congress. Congress did not 

painstakingly craft such mechanisms into the statute for its own amusement and EPA is not at 

liberty to ignore such clear congressional directions.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA and for a discussion on the Agency’s rationale for deferring a final Bevill 

Determination. In that, the Agency is deferring a final Bevill Determination, comments made 

on the statutory procedures by which a Bevill Determination is to be made are outside the 

scope of this rulemaking at this time. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-2

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2 10.4.3 2.2.8 2.1.3 4.1.1

Comment Excerpt Text:

The following summarizes the specific issues we address in these comments:

- PCA’s comments in response to the NODA, including the detailed additional examples of 

stigma that we provide herein, focus on and are in direct response to specific documents, i.e., the 

Fortuna analysis (EPA-HQ-RCRA-2011-0392-0026) and the comments submitted by the Joint 

Advocates (EPA-HQ-RCRA-2011-0329-0119), that EPA has made a subject of this NODA.

- Former Administrator Browner’s sensitivity to avoid needlessly creating a stigma and instead 

regulate initially under subtitle D was, and still is sound policy: “If this conclusion [regulating 

under subtitle D] turns out not to be warranted, we would be inclined to re-examine our current 

decision.”

- Since submitting our initial comments, PCA has learned of a number of additional examples of 

stigma involving coal combustion residuals (CCRs) and the reuse of CCRs for beneficial 

purposes, which discredit and rebut the claims by the Joint Advocates and Fortuna that 

regulating CCRs under subtitle C will not stigmatize CCRs used for beneficial purposes.

- EPA’s Final Plan for conducting periodic retrospective reviews of existing regulations lends 

strong support for regulating CCRs under subtitle D and not under subtitle C.

- The results of a recent sociological study conducted by the University of New Hampshire 

corroborate the validity of industry’s concerns that CCRs used for beneficial purposes can be, 

and are being, stigmatized by the array of negative information being published and disseminated 

by the advocates of the subtitle C option, and by others, and that such information is fostering 

and reinforcing the public’s opposition to beneficial uses of CCRs generally and, in particular, 
441

belief that products containing CCRs should be avoided whenever possible.

- A recent article published by, and for, the property and casualty sector of insurance industry, 

calling CCRs the “next asbestos,” provides good and reliable evidence that CCRs have already 

been stigmatized.

- Comments submitted to this docket by opponents of the subtitle D options provide an excellent 

demonstration of the efforts taking place to smear and ultimately stigmatize CCRs and the reuse 

and recycling of CCRs.

- The campaign against the use of CCRs for sandblasting and roofing shingles provides a good 

example of how negative advertising is already being used and re-circulated in order to 

stigmatize products whose ingredients include CCRs.

- EPA should not treat a stigma report prepared for the leading opponents to the subtitle D option 

as “expert opinion” and/or give the report’s analysis and conclusions deference and/or preference 

over the stigma concerns and comments supporting stigma submitted by industry and others.

- EPA is required by law to consider the stigma effect that regulating CCRs under RCRA subtitle 

C would, or might, have on the current and future beneficial use of CCRs.

- Opponents of the subtitle D options have not demonstrated that the stigma concerns that have 

been presented to EPA are fallacious.

- Industry, state governments, and others have demonstrated in comments and with examples that 

the stigmatization of CCRs reuse has already begun to occur.

- Individual members of the U.S. Green Building Council’s (USGBC) “knowledgeable panel of 

professionals” have posted advice and recommendations on the USGBC website which are 

effectively lending unwarranted credence to the negative information and stigma being promoted 

about CCR reuses.

- Opponents of the subtitle D options have presented erroneous legal arguments regarding the 

Bevill factors and their irrelevancy to EPA’s final decision in this rulemaking.

- Opponents of the subtitle D options have effectively conceded that the potential for CCRs and 

their reuses to be stigmatized does exist.

- Claims that the courts disfavor stigma arguments have no merits.

- Opponents of the subtitle D options are engaging in a smear campaign that includes the 

widespread dissemination of false and misleading information, innuendo, and the raising of 

specious issues, all carefully crafted to inflame the public and instill public fear of CCRs and 

virtually all reuses of CCRs.

- Opponents of the subtitle D options erroneously and disingenuously argue that if a particular 
442

reuse of CCRs might be “dangerous” it cannot be “beneficial.”

- Opponents of the subtitle D options have sought to demonize all unencapsulated uses of CCRs, 

and do so without any consideration of whether appropriate control measures could be put into 

place or if a particular use is minimal.

- Opponents of the subtitle D options have cited research results for erroneous propositions 

and/or out of context in order to promote public fear of, and opposition to, encapsulated reuses of 

CCRs generally.

- Opponents of the subtitle D options have cited examples of “miscellaneous” reuses of CCRs 

that they know, or at the very least should know, are not relevant to this rulemaking, in order to 

stimulate public doubt and fear about CCR recycling and reuse and thus foster public opposition 

to the use of coal as an industrial fuel source.

- The negative comments and advocacy tactics being used by opponents of the subtitle D options 

will be a direct cause of the decrease in the reuse and recycling of CCRs that will occur in the 

event CCRs are regulated under subpart C.

- The public education program that opponents of the subtitle D options advocate will be 

incapable of overcoming the stigma and fear of CCR reuses that those opponents have already 

generated and are continuing to promote.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-8

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3 2.2.8 2.1.3

Comment Excerpt Text:

B. Comments submitted to the docket present erroneous legal arguments regarding the Bevill 

factors and their relevancy to EPA’s final decision in this rulemaking. In comments submitted by 

Joint Advocates (EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources 

Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and 

Physicians for Social Responsibility) the following claims have been made: “While the Bevill 

factors arguably require EPA at least to consider stigma, the Bevill factors do not govern EPA’s 

final decision on its proposed rule,” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPAHQ-RCRA-2009-0640-10495.1 at 122), and that, “[e]ven if the stigma concerns raised by 

industry were legitimate . . . they would not provide a valid basis for declining to regulate coal 

ash under RCRA Subtitle C.” Id. The Joint Advocates further assert, as Fortuna did in his 
443

analysis: “The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is 

directly on point.” EPA-HQ-RCRA-2011-0392-0119 at 123 (previously EPA-HQ-RCRA-2009-

0640-10495.1 at 123). PCA disagrees.

The above-quoted claims present the Joint Advocates’ legal assertions relating to the scope and 

manner of EPA’s rulemaking authority under the Bevill Amendment. As such, if these assertions 

are correct, they would control whether, when, and how, the issue of stigma and, in particular, 

the presentations of factual examples of stigma, can be considered by EPA in the course of this 

rulemaking. Under the Joint Advocates’ theory, industry’s factual presentations of examples of 

stigma would have no relevancy to EPA’s decision to adopt the subtitle C option, because “the 

Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA-HQ-RCRA-2011-

0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 122). While PCA 

disagrees with the Joint Advocates, if it is assumed they are correct for sake of argument, it must 

also be assumed that the Joint Advocates would have presented this legal argument at the 

beginning of their comments addressing stigma, because the existence of such clear-cut legal 

restrictions on EPA’s authority would supersede EPA’s consideration of stigma and other 

matters of fact and would have avoided any need for EPA, or the Joint Advocates, to address 

stigma at all. Clearly that would be the logical and most expedient thing to do. Thus, if HWTC 

applies and is as “directly on point” as they claim, the Joint Advocates would only have needed a 

few paragraphs, or perhaps only a footnote, to dispose of the stigma issue and EPA’s 

consideration of stigma.

The Joint Advocates did not present their legal argument upfront, however. In fact, their legal 

arguments do not even begin until page 122 of their comments, i.e., 11 pages into their 

comments’ discussion of stigma.

Moreover, the Joint Advocates discussion of stigma in their comments was not limited to just a 

few paragraphs, or a footnote. Rather, the Joint Advocates’ initial, as well as their primary, focus 

on stigma deals with matters involving facts. Beginning on page 111 of their comments, and 

ending on page 153, they present a lengthy dissertation on why industry’s claims are, among 

things, “speculative,” EPA-HQ-RCRA-2011-0392-0119 at 114 (previously EPA-HQ-RCRA2009-0640-10495.1 at 114), and amount to nothing more than industry’s presentation of 

“alarmist stigma arguments” that should not be given credence. EPA-HQ-RCRA-2011-0392-

0119 at 127 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 127).

PCA believes it is significant that the Joint Advocates felt it was necessary to devote more than 

41 pages of their comments to the issue of stigma, when, according to their legal theory, virtually 

all of that discussion should have been superfluous. It is also significant that the Joint Advocates 

felt the need to commission and pay Fortuna to prepare his stigma report, which they appended 

to their comments as Appendix N. Clearly, the Joint Advocates’ actions speak much louder than 

their words. Clearly too, the Joint Advocates demonstrate they have no confidence in the merits 

and correctness of their legal argument. As we explain below, they have good reason.

Earlier in these NODA comments we demonstrated that the DC Circuit’s decision in HWTC is 

neither on point nor relevant to this rulemaking. PCA does not feel it is necessary to repeat that 

discussion here and we therefore refer EPA back to pages 9-11 of these NODA comments, supra.
444

However, PCA will address here another legal argument that was also raised in the Joint 

Advocates’ comments, which is based on their flawed interpretation of the Bevill Amendment 

and its interplay with 42 U.S.C. § 6921. According to the Joint Advocates:

While EPA must determine whether to promulgate regulations based on consideration of the 

Bevill factors, once it has made the decision to regulate, the ordinary listing factors apply. This 

makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat 

RCRA’s overarching purpose to regulate coal ash less protectively than the statute and 

implementing regulations require. Because none of the relevant provisions of the Bevill 

Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, 

EPA must make a final listing decision based on the regulatory listing criteria, which do not 

include stigma or even encouragement of reuse as a factor.

EPA-HQ-RCRA-2011-0392-0119 at 124 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 

124).

Based on the Joint Advocates’ theory, five out of the eight individual Bevill factors would be 

rendered nugatory and, as a result, EPA’s consideration of those factors would be superfluous.

- Factor 1: “the source and volumes of such materials generated each year;”

- Factor 5: “alternatives to current disposal;”

- Factor 6: “the cost of such alternatives;”

- Factor 7: “the impact of those alternatives on the use of coal and other natural resources;”

- Factor 8: “the current and potential utilization of such materials.”

According to the Joint Advocates’ statutory analysis, therefore, while acknowledging the 

obvious fact that the Bevill Amendment directs EPA to analyze such factors, they essentially 

argue that none of these five factors is relevant to EPA’s regulatory decision, because “the Bevill 

factors do not govern EPA’s final decision on its proposed rule.” EPA-HQ-RCRA-2011-0392-

0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 122).

In other words, the Joint Advocates argue that the Bevill Amendment imposed what amounts to 

an “all-or-nothing” scheme for regulating Bevill wastes. Under this theory, if CCRs need to be 

regulated, they must be regulated under subtitle C, or they cannot be regulated at all. Therefore, 

according to their theory, if, after considering the Bevill factors, EPA determines that CCRs 

should not be regulated under subtitle C, EPA would be prohibited from regulating CCRs under 

RCRA subtitle D, because “the Bevill factors do not govern EPA’s final decision on its proposed 

rule.” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 

at 122).

To put this into perspective, under the Joint Advocates’ theory, if EPA determines that the 

unregulated disposal of CCRs poses a potential danger to human health and the environment 

(Bevill factor 3), but also determines that CCRs should not be regulated under subtitle C, 

because doing so would reduce current and potential future reuse and recycling of CCRs (Bevill 

factors 7 and 8) and increase landfill disposal, EPA could not regulate CCRs under subtitle D, 
445

even if the risk to public health and the environment could be appropriately addressed under 

subtitle D, and the amount of CCRs being disposed of in landfills would be significantly 

decreased. The Joint Advocates’ “all-or-nothing” construction of the statute is nonsensical. It 

would be extremely short-sighted, and arbitrary, for EPA to adopt the Joint Advocates’ “all-ornothing” theory.

At a minimum, if the Joint Advocates’ statutory construction were adopted by EPA, the 

Agency’s analysis of at least five of the eight Bevill factors would be rendered effectively 

meaningless, because regardless of what information were developed under those factors, the 

information would have no bearing on EPA’s final regulatory decision. The Joint Advocates’ 

construction ignores a long line of Supreme Court decisions. As the Supreme Court opined in 

Duncan v. Walker, 533 U. S. 167, 174 (2001), for example: “It is 'cardinal principle of statutory 

construction’ that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, 

no clause, sentence, or word shall be superfluous, void, or insignificant." See, also United States 

v. Menasche, 348 U. S. 528, 538-539 (1955) (“It is our duty to give effect, if possible, to every 

clause and word of a statute [citation omitted] rather than to emasculate an entire section."); 

Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ("It is the duty of the court to give effect, if 

possible, to every clause and word of a statute, avoiding, if it may be, any construction which 

implies that the legislature was ignorant of the meaning of the language it employed.”).

The 2000 Bevill determination that Administrator Browner issued makes it quite clear that EPA 

is well aware of this basic canon of statutory construction. It is also abundantly clear from the 

2000 determination that the Agency has rejected the Joint Advocates’ “all-or-nothing” reading of 

the statute. Below we quote a number of statements from Administrator Browner’s 2000 

determination that speaks directly to the statutory construction that the Joint Advocates have 

advanced in their comments. Her statements support PCA’s reading of the statute and make it 

abundantly clear that the Joint Advocates’ interpretation of the statutory is wrong:

"Today’s decision was, in the Agency’s view, a difficult one, given the many competing 

considerations discussed throughout today’s notice. After considering all of the factors specified 

in RCRA section 8002(n), we have decided as discussed further below, that the decisive factors 

are the trends in present disposal and utilization practices (section 8002 (n)(2)), the current and 

potential utilization of the wastes (Section 8002 (n)(8), and the admonition against duplication of 

efforts by other federal and state agencies."

65 Fed. Reg. at 32215.

"We believe, however, for the reasons described below, the better approach at this time to 

ensuring adequate management of FFC wastes is to develop national regulations under subtitle D 

rather than subtitle C. EPA has reached this conclusion in large part based on consideration of 

“present disposal and utilization practices.” RCRA § 8002(n)."

65 Fed. Reg. at 32216.

EPA’s 2000 determination further makes clear that, in selecting which subtitle of RCRA CCRs 

should be regulated under, the factor of stigma does indeed provide a valid basis for EPA to 
446

decline to regulate CCRs under RCRA subtitle C. The following statement from Administrator 

Browner’s 2000 determination demonstrates this clearly, and unequivocally:

"We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) directs 

us to consider, among other factors, “the current and potential utilization of such materials.’’ 

Industry commenters have indicated that they believe subjecting any coal combustion wastes to a 

subtitle C regime would place a significant stigma on these wastes, the most important effect 

being that it would adversely impact beneficial reuse. As we understand it, the concern is that, 

even though beneficially reused waste would not be hazardous under the contemplated 

subtitle C approach, the link to subtitle C would nonetheless tend to discourage purchase 

and re-use of the waste. We do not wish to place any unnecessary barriers on the beneficial 

uses of these wastes, because they conserve natural resources, reduce disposal costs and 

reduce the total amount of waste destined for disposal. [Emphasis supplied] States and 

industry have also expressed concern that regulation under subtitle C could cause a halt in the 

use of coal combustion wastes to reclaim abandoned and active mine sites. We recognize that 

when done properly, minefilling can lead to substantial environmental benefits. EPA believes the 

contingent management scheme we discussed should diminish any stigma that might be 

associated with the subtitle C link. Nonetheless, we acknowledge the possibility that the 

approach could have unintended consequences. We would be particularly concerned about any 

adverse effect on the beneficial re-use market for these wastes because more than 23 percent 

(approximately 28 million tons) of the total coal combustion waste generated each year is 

beneficially reused and an additional eight percent (nine million tons) is used for minefilling. 

EPA believes that such reuse when performed properly, is by far the environmentally preferable 

destination for these wastes, including when minefilled. Normally, concerns about stigma are 

not a deciding factor in EPA's decisions under RCRA, given the central concern under the 

statute for protection of human health and the environment. However, given our 

conclusion that the subtitle D approach here should be fully effective in protecting human 

health and the environment, and given the large and salutary role that beneficial reuse 

plays for this waste, concern over stigma is a factor supporting our decision today that 

subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D 

approach. [Emphasis supplied]

Additionally, in a 1993 regulatory determination, EPA previously addressed large volume coal 

combustion wastes generated at electric utility and independent power producing facilities that 

manage the wastes separately from certain other low volume and uniquely associated coal 

combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 regulatory determination 

maintained the exemption of these large volume coal combustion wastes from being regulated as 

hazardous wastes when managed separately from other wastes (e.g., in monofills). We intend 

that the national subtitle D regulations we develop for the coal combustion wastes subject to 

today’s regulatory determination will also be applicable to the wastes covered in the 1993 

regulatory determination for the reasons listed below, so that all coal combustion wastes are 

consistently regulated for placement in landfills, surface impoundments, and minefills.

- The co-managed coal combustion wastes that we studied extensively in making today’s 

regulatory determination derive their characteristics largely from these large-volume wastes and 

not from the other wastes that are co-managed with them.
447

- We believe that the risks posed by the co-managed coal combustion wastes result principally 

from the large-volume wastes.

- These large-volume coal combustion wastes, account for over 20% of coal combustion wastes.

As we proceed with regulation development, we will also take enforcement action under RCRA 

section 7003 when we identify cases of imminent and substantial endangerment. We will also 

use Superfund remedial and emergency response authorities under the Comprehensive 

Environmental Response Compensation and Liabilities Act (CERCLA), as appropriate, to 

address damages that result in risk to human health and the environment.

However, as stated above, this decision was a difficult one and EPA believes that, absent our 

conclusions regarding the current trends in management of this waste, the waste might present 

sufficient potential threat to human health and the environment to justify subtitle C regulation. 

There are several factors that might cause us to rethink our current determination. First, and 

perhaps most importantly, if current trends toward protective management do not continue, EPA 

may well determine that subtitle C regulation is warranted for this waste. As we have stated, we 

do not believe the current gaps in the basic controls are acceptable, and our determination that 

subtitle C regulation is not warranted is premised to a large extent on our conclusion that subtitle 

D regulation will be sufficient to close these gaps. If this conclusion turns out not to be 

warranted, we would be inclined to re-examine our current decision."

65 Fed. Reg. at 32217-18.

In short, the following two conclusions regarding the applicability and application of the Bevill 

Amendment must be drawn from Administrator Browner’s 2000 determination. First, that the 

Bevill factors apply to the entirety of EPA’s regulatory decision regarding CCRs and not just to 

EPA’s determination whether CCRs should be regulated. Therefore, contrary to what the Joint 

Advocates’ comments contend, EPA’s application of the Bevill factors in this rulemaking should 

not be limited solely to the Agency’s decision whether to regulate to CCRs but also extends to 

EPA’s determination of how CCRs are listed, i.e., whether CCRs should be regulated under 

RCRA subtitle C or subtitle D. [Footnote 22: The Joint Advocates ignore the statutory 

construction the Agency adopted under former Administrator Browner. They instead assert, 

albeit erroneously: “Even if the stigma concerns raised by industry were legitimate – which they 

are not – they would not provide a valid basis for declining to regulate coal ash under RCRA 

Subtitle C.” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-

10495.1 at 122).] Second, Administrator Browner’s 2000 determination also made abundantly 

clear that the factor of stigma can indeed influence EPA’s decision whether to CCRs should be 

regulated under RCRA subtitle C or subtitle D. Based on Administrator Browner’s 2000 

determination, if regulating CCRs under subtitle C could, in fact, cause a stigma, the existence of 

that possibility will suffice to provide EPA with a valid basis to decline to regulate CCRs under 

subtitle C.

Accordingly, and contrary to the comments submitted by the Joint Advocates, the examples of 

stigma that industry provides bear directly upon EPA’s decision whether it would be better to 
448

regulate CCRs under RCRA subtitle D, i.e., to decline to regulate them under subtitle C. 

Although PCA provided a number of examples of stigma in its original comments, because of 

the comments submitted by the Joint Advocates, and by Fortuna, we feel a need to submit 

additional examples of stigma that we learned of since submitting our original set of comments.

As further rebuttal to the comments of the Joint Advocates and also Fortuna, PCA provides a 

detailed discussion of additional examples of stigma in Section E of these NODA comments, 

below.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Section 2.2.1 - Source and volumes of CCRs generated per year

Total Number of Submissions: 3

Total Number of Comments: 7

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-15

Organization1:Earthjustice et. al.
449

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. Analysis of “The Source and Volumes of Coal Ash Generated Per Year” Underscored 

the Need for Subtitle C Regulation

EPA’s analysis of “the source and volumes of coal ash generated per year” must consider 

heightened risks from the substantial increase in volume of CCRs. As EPA points out in the 

preamble, the volume of CCR has increased substantially over the last two decades. [Footnote 

45: Id. at 35,151.] The total estimated generation of CCR in the 1999 Report to Congress is about 

25 percent smaller than the total tonnage of CCR estimated in EPA’s 2009 Regulatory Impact 

Analysis, reflecting an increase of over 35 million tons of annual waste generation. As EPA 

acknowledges, the 1988 and 1999 Reports to Congress were based on a much smaller volume of 

CCRs. [Footnote 46: Id.] In fact, when Congress passed the Bevill Amendment in 1980, the total 

amount of coal ash generated (65,933,000 tons) comprised a volume 47 percent smaller than 

current generation (141,000,000 tons). [Footnote 47: ICF Resource, Inc., Coal Combustion 

Waste Management Study, (Docket ID No.: EPA-HQ-2006-0796 7 (prepared for U.S. Dep’t of 

Energy) (Feb. 1993).] With the much larger volume of CCR comes a commensurate increase in 

the risk of harm posed by mismanagement. Larger volumes and higher total disposal costs have 

led some generators to dump their waste in increasingly risky ways, including in sham reuse 

projects, [Footnote 48: 75 Fed. Reg. at 35,147 (citing the BBBS Sand and Gravel Quarries in 

Gambrills, Maryland).] in aging, leaking, and unstable impoundments and landfills, and in active 

and abandoned mines.

1. EPA Predicts Future Increases in Coal Ash Generation.

According to EPA, increasing coal use for electricity generation at existing plants and 

construction of a few new coal-fired plants will lead to modest annual production increases that 

average 1.1 percent per year from 2005 to 2015. [Footnote 49: EPA, Materials Characterization 

Paper In Support of the Proposed Rulemaking – Identification of Nonhazardous Secondary 

Materials That Are Solid Waste Coal Refuse 3 (Mar. 18, 2010).] As more coal is burned in coalfired power plants, there is a commensurate increase in CCRs at the rate of 10–20% of the total 

amount of coal burned. The Energy Information Adminsistration (EIA) forecasts a 1.8% growth 

in coal production from 2015 to 2030. While this forecast is likely overstated, given that it 

assumes additions of coal-fired generating capacity and several coal-to-liquids (CTL) plants, 

EPA must assume that coal-fired power plants will continue to generate high volumes of waste 

for the foreseeable future. [Footnote 50: U.S. Dep’t of Energy, Energy Information 

Administration (EIA), Annual Energy Outlook 2007 with Projections

to 2030 (Publication DOE/EIA-0383) (Feb. 2007).]

There will also be an increase in future CCR generation from the increase in Clean Air Actmandated emission controls. In response to current and proposed requirements, additional NOx 
450

control and flue gas desulfurization (FGD) systems for SO2 control will be more widely used. 

The installation of scrubbers will result in significant increases in the production of FGD sludge. 

Some estimates project a doubling or tripling of the number of wet scrubbers as a result of 

implementation of the Clean Air Interstate Rule (CAIR). [Footnote 51: EPA, Characterization of 

Coal Combustion Residues from Electric Utilities – Leaching and Characterization Data (EPA600/R-09/151), at 7 (Dec. 2009).] According to EPA, over half of the U.S. coal-fired capacity is 

projected to be equipped with SCR and/or FGD technology by 2020. [Footnote 52: Id.] In fact, 

many coal plants across the country are in the process of installing new scrubber systems, and 

EPA predicts a 16% increase in scrubbed units between 2009 and 2015 alone. [Footnote 53: 

EPA, Steam Electric Power Generating Point Source Category: Final Detailed Study Report 4-

1-4-6 (2009).] The increase in scrubber sludge and increased coal burning is estimated to raise 

the total CCR generated to 175 million tons by 2015. [Footnote 54: Memorandum from EPA, 

Clean Air Markets Division, to the Docket, entitled “Economic and Energy Analysis for the 

Proposed Interstate Air Quality Rulemaking” (Jan. 28, 2004).]

2. The Steep Rise in the Volume of CCR Increases Risks from CCR Mismanagement.

Larger volumes of coal combustion wastes translates into increased risks associated with 

disposal, including increased numbers of dangerous hazardous waste dumps, increased volume 

of toxics released to the environment, and increasingly widespread disposal in states where there 

is no effective regulation. 

a. New EPA Data on CCR Surface Impoundments Reveal a Far Greater Number of Units 

than Previously Known.

According to the 1999 Report to Congress, EPA estimated that there were approximately 600 

active CCR disposal units in total, including about 300 landfills and 300 surface impoundments. 

[Footnote 55: 1999 Report to Congress v. 2, at 3-21.] Following the catastrophic collapse of the 

coal ash dam at TVA’s Kingston Fossil Plant in December 2008, EPA realized that it had to 

obtain much more information on the universe of operating coal ash ponds. In response to that 

need, EPA sent industry-wide Information Collection Requests (ICRs) in March, April and 

December of 2009. Based on the ICR responses, EPA now has much more detailed and accurate 

information regarding the inventory of surface impoundments operated by the nation’s electric 

utilities. The Agency, in fact, received data on 629 surface impoundments.

The doubling of the estimated number of impoundments is not inconsequential. While the 1999 

Report to Congress assumed a 40-year operating life for CCR management units, it is clear from 

the new surface impoundment data that utilities are routinely employing disposal units for far 

longer than four decades. [Footnote 56: Id. at 3-66.] Sixty-four percent of the operating CCR 

surface impoundments (over 400 ponds) were built in the 1970s or earlier. [Footnote 57: EPA, 

Information Request Responses from Electric Utilities, Database of Survey Responses, available 

at: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys.htm.] The total surface area 

occupied by these waste ponds exceeds 31,000 acres—an area over twice the size of Manhattan. 

These ponds have the capacity to store more than 37.6 billion cubic feet of coal ash, enough ash 

to flow over Niagara Falls for more than four days straight.
451

Unfortunately, EPA did not send ICRs to utilities for information on landfills. Consequently, 

EPA is unable to estimate with accuracy the number of currently operating on-site and off-site 

CCR landfills. The Regulatory Impact Analysis contains an estimate similar to EPA’s 1999 

figure, of slightly over 300 units. However, in view of EPA’s gross underestimate of the number 

of surface impoundments, one can expect that this figure similarly undercounts the total number 

of landfills operating today.

b. According to the Toxic Release Inventory (TRI), the Volume of Hazardous Chemicals in 

Coal Ash Is Presently Enormous and Accumulating Rapidly in CCR Surface 

Impoundments and Landfills.

According to EPA’s Toxic Release Inventory (TRI), the volume of hazardous chemicals in coal 

ash is presently enormous and accumulating rapidly in CCR surface impoundments and landfills. 

The disastrous spill of toxic coal ash from TVA’s Kingston plant dramatized how unsafe 

disposal practices can damage the environment and threaten the health of residents downstream. 

According to data reported by the industry to the TRI, power plants dump millions of pounds of 

toxic metals that are contained in coal ash into wet surface impoundments like the TVA pond 

that breached every year. Based on EPA’s analysis, approximately 74 percent of these 

impoundments are unlined and over 400 are over 30 years old, increasing the risk that toxic 

pollutants such as arsenic and lead will leach into groundwater or nearby rivers and streams. 

[Footnote 58: 65 Fed. Reg. at 32,214, 32216 (reporting that 26% of all surface impoundments

have liners).]

Among many other metals, arsenic, chromium, lead, nickel, selenium, and thallium are present in 

coal ash. These metals are prone to leaching from ash into the environment and can be highly 

toxic at minute levels to either humans or aquatic life, or both. [Footnote 59: See Nat’l Research 

Council, Nat’l Academies, Managing Coal Combustion Residues in Mines 81–104 (2006), 

available at http://books.nap.edu/catalog.php?record_id=11592#toc.] Between 2000 and 2009, 

the power industry reported disposal of coal ash containing more than 164 million pounds of 

these six toxic pollutants into surface impoundments. [Footnote 60: See Attachment 1, Electric 

Utility Industry Disposal of Arsenic, Chromium, Lead, Nickel, Selenium, and Thallium in 

Surface Impoundments and Landfills.] Each year, the power industry reports disposing well over 

10,000 pounds of these metals into surface impoundments. [Footnote 61: Id.]

In addition to disposal in wet ponds such as the Kingston impoundment, the power industry 

reported dumping approximately 215 million pounds of arsenic, chromium, lead, nickel, 

selenium, and thallium into landfills and other land disposal systems between 2000 and 2009. 

[Footnote 62: See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion 

Residues in Mines 81–104 (2006), available at 

http://books.nap.edu/catalog.php?record_id=11592#toc.] Although not as dramatic as the 

Kingston spill, slow motion leaks from so-called “dry” landfills have contaminated groundwater 

and surface water across the United States. [Footnote 63: See EPA, Coal Combustion Waste 

Damage Case Assessments (July 9, 2007) [hereinafter 2007 EPA Damage Case Assessment]; 

Env. Integrity Project & Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste 

Sites (Feb. 24, 2010) (Jeff Stant, ed.) [hereinafter Out of Control], available at 

http://www.environmentalintegrity.org/news_reports/documents/OutofControl-
452

MountingDamagesFromCoalAshWasteSites.pdf; Env. Integrity Project, Earthjustice, & Sierra 

Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their 

Environment 132–143 (Aug. 26, 2010) (Jeff Stant, ed.) [hereinafter In Harm’s Way], available at 

http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pdf 

(documenting

numerous coal combustion waste landfills that have contaminated ground and surface waters via 

direct discharges

and leaks in disposal units).] In total, the power industry was responsible for dumping over 379 

million pounds of these six toxic pollutants into surface impoundments, landfills, and other land 

disposal systems between 2000 and 2009 alone. [Footnote 64: See Attachment 1, Electric Utility 

Industry Disposal of Arsenic, Chromium, Lead, Nickel, Selenium, and Thallium in Surface 

Impoundments and Landfills. During this same time period, the power industry reported 

recycling just 6,584,989 pounds of metals and metal compounds—significantly less than many 

other industries. Attachment 2, U.S. Envtl. Prot. Agency, TRI Transfers Off-Site for Further 

Waste Management (in pounds), for Metal and Metal Compounds, By Industry (2009), available 

at http://www.epa.gov/triexplorer/industry.htm.] Due to the lack of federal regulations 

establishing minimum safeguards, much of this pollution eventually makes its way into our 

drinking water sources, rivers, lakes, and streams.

These numbers are just the tip of the iceberg. Although disposal of these six pollutants has 

gradually decreased over the past ten years, coal-fired generation has also declined from 

1,966,265 megawatt hours in 2000 to 1,764,486 megawatt hours in 2009. [Footnote 65: Energy 

Info. Admin., Dep’t of Energy, Electric Power Monthly, tbl. 1.1 (Oct. 14, 2010), available at 

http://www.eia.doe.gov/cneaf/electricity/epm/epm_sum.html.] When coal-fired generation 

increases, the amount of coal combustion waste, and the toxic pollutants contained in this waste, 

will also increase. Furthermore, our analysis includes just ten years of data and only six of the 

twenty-seven metals commonly found in coal combustion waste.

Attachment 3 identifies those plants that report disposing of the largest volumes of each pollutant 

between 2000 and 2009 to surface impoundments. At many plants, the amounts dumped into 

surface impoundments significantly exceed the disposal volumes at the Kingston facility. The 

data suggest that many communities are at risk, whether from sudden spills or the slow leaching 

of toxic pollutants from coal ash into the surrounding environment. Consider, for example:

- Arsenic. EPA samples measured arsenic levels far above drinking water standards in nearby 

waterways after the spill from Kingston’s surface impoundment. [Footnote 66: Appalachian 

Voices, Results of ICP-OES Analyses of the TVA Ash Spill Samples Collected 12-27-08 from 

the Emory River, 1, available at 

http://www.appvoices.org/resources/Preliminary_TVA_Ash_Spill_Sample_Data_AppVoices_D

ecember% 202008.pdf; and Shaila Dewan, Metal Levels Found High in Tributary After Spill, 

N.Y. Times, Jan. 2, 2009, at A12.] According to TRI data, at least 18 facilities reported depositing 

more arsenic in coal ash impoundments than Kingston. Between 2000 and 2009, for example, the 

Gorgas steam plant in Parrish, AL reported depositing nearly four times the amount of arsenic 

placed in the TVA Kingston impoundment over the same period.

- Chromium. The Kingston plant reported disposing of 724,000 pounds of chromium in surface 
453

impoundments between 2000 and 2009. But according to TRI data, the JM Stuart plant in 

Manchester, Ohio, tops the list for chromium disposal in impoundments, reporting 2,048,632 

pounds between 2000 and 2009. A total of 16 facilities reported disposing of more chromium in 

surface impoundments than Kingston.

- Lead. Duke’s Gibson station in Owensville, Indiana disposed of 1,483,276 pounds of lead in 

surface impoundments between 2000 and 2009, or about three times the amount reported in 

Kingston for the same period. Sixteen plants reported releasing more lead to surface 

impoundments than Kingston.

- Nickel. The Gibson, JM Stuart, Ghent (Kentucky), Cayuga (New York), and Gaston (Alabama) 

plants reported the largest releases of nickel to surface impoundments between 2000 and 2009. 

Another fifteen plants disposed of nickel in amounts greater than Kingston between 2000 and 

2009.

- Selenium. The JM Stuart plant in Ohio disposed of more than 162,000 pounds of selenium in 

impoundments between 2000 and 2009, or over 3 times the amount reported by Kingston. A total 

of 14 facilities report releases of selenium between 2000 and 2009 that exceed amounts disposed 

of in the Kingston impoundment.

c. The Sources Generating the Greatest Volumes of CCRs Are Located in States that Have 

the Most Lax Disposal and Reuse Safeguards.

The sources of greatest coal ash generation tend to be where regulatory controls are the weakest. 

With the exception of Pennsylvania, [Footnote 67: Pennsylvania Department of Environmental 

Protection recently passed new regulations governing the disposal of CCR in coal mines. While 

Pennsylvania regulations remain inadequate in several areas, it cannot be said that the state 

regulations are among the worst in the nation, considering the protection recently afforded to 

dumping in mines.] state programs in the ten largest coal ashproducing are grossly deficient and 

lack many basic requirements for ensuring safe coal ash disposal. The top ten generating states, 

Pennsylvania, Texas, Ohio, West Virginia, Kentucky, Indiana, Florida, Georgia, North Carolina 

and New Mexico, together generate over fifty percent of the CCR produced in the United States 

annually. Section III.B.1 of these comments details the deficiencies of these and 27 other CCRgenerating states.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-3

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
454

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Source and Volumes Do Not Support a Listing as Special Waste. (Criteria 1)

While CCRs are produced in significant volumes by electric generating facilities [FN 3: 75 Fed. 

Reg. at 35151.], that fact alone, nor the fact that they contain minor concentrations of trace 

elements, does not justify their regulation as a listed "special waste". It is well documented that 

the vast majority of CCRs produced by power plants, including those produced by DP&L 

facilities, would not be classified as a characteristic hazardous waste through ignitability, 

corrosivity, reactivity, or toxicity. USEPA includes data to that effect in Table 2 and Table 3 of 

the proposed rule. [FN 4: 75 Fed. Reg. at 35138.]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-16

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

From the moment it is created, boiler slag is a vitrified, glass-like solid material that renders its 

constituents essentially inert and immobile in the environment. Boiler slag only comes into being 

when the coal ash in slag tap and cyclone type wet-bottom furnaces is heated to the point of 

melting, and the extremely hot liquid coal ash is rapidly cooled by direct application of cold 

water. This water-quenching step super cools the molten coal ash and changes it into the vitrified 

material known as boiler slag. Slag tap and cyclone type furnaces are two different types of wetbottom furnaces that have been in operation in the United States since about 1942. A slag-tap 

furnace bums pulverized coal, and a cyclone furnace bums crushed coal. Neither type has been 

built in the United States since the 1960s.

Both types of furnaces are operated at very high temperatures so that the bottom ash is always 

kept in a molten state. Periodically, the molten ash is drawn off from the furnace bottom by 

allowing it to flow downward into an ash hopper that contains the quenching water. The 

quenching process that creates the boiler slag has always been a part of the operating procedures 

for these wet-bottom furnaces. Because the operating procedures for existing wet-bottom 

furnaces have not changed in 50 years and no one is building new wet-bottom furnaces, the 

nature of the resulting boiler slag has not changed and will not change. [Footnote 4: See 

Managing Coal Combustion Residues in Mines, National Research Council, (2006) at 30, 

(Exhibit 1: Managing Coal Combustion Residues in Mines, National Research Council, (2006))]
455

Around 2.2 million tons of boiler slag are generated annually nationwide, and almost all of it 

(about 2.0 million tons per year) is beneficially reused. [Footnote 5: See 2009 Coal Combustion 

Product (Ccp) Production & Use Survey Report, American Coal Ash Association (Nov. 3, 2010) 

(Exhibit 2: 2 2009 Coal Combustion Product (CCP) Production & Use Survey Report, American 

Coal Ash Association (Nov. 3,2010))] Electric utilities with wet-bottom furnaces sell boiler slag 

to Harsco and other companies that beneficially reuse the material. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-21

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.1

Comment Excerpt Text:

C. No Equipment Changes Or Modifications To Operating Procedures At Coal Fired Electric 

Utilities Will Alter The Nature Or Properties Of Boiler Slag

There is no basis for concluding that the increased use of advanced air-pollution control 

technologies at coal-fired power plants will have any effect on either boiler slag's constituents or 

the potential for those constituents to leach from the boiler slag. Harsco understands that these 

potential concerns could arise only if new air pollution-control technologies are incorporated on 

furnaces during new construction or added during modifications of existing furnaces. EPA 

looked at this very issue in its report that evaluated "changes in composition and constituent 

release that may occur to fly ash and other coal combustion residues (CCRs) in response to 

changes in air pollution control technology at coal-fired plants." [Footnote 23: EPA, 

Characterization of Coal Combustion Residues From Electric Utilities -- Leaching and 

Characterization Data, EPA-6001R-09/151 (Dec 2009) ("EPA Dec 2009") at ii.] The Agency 

observed that, "boiler slag and bottom ash are not of interest in this study because air emission 

controls are not expected to change their composition." [Footnote 24: Id at 1 (emphasis added)]

None of the advanced air-pollution control technologies identified in the NPRM will affect the 

boiler slag produced in furnaces that create boiler slag. No power plants are purchasing and 

installing new slag tap or cyclone type wet-bottom furnaces today. [Footnote 25: Managing Coal 

Combustion Residues m Mmes, National Research Council (2006) at 30 (Exhibit 1: Managing 

Coal Combustion Residues in Mines, National Research Council, (2006))] In addition, we have 

seen no evidence that existing slag tap or cyclone type furnaces are being modified and 

retrofitted with the advanced air-pollution control technologies that could alter the nature of the 

furnace's ash and the resulting boiler slag. Instead, we have observed that existing wet-bottom 
456

furnaces continue to operate in their original form, are being retired, or are being retrofitted so 

they can burn fuels other than coal.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-25

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2

Comment Excerpt Text:

EPA's approach of lumping boiler slag in a "bottom ash and slag" category without ensuring that 

the reported data actually were representative of boiler slag, is especially troubling given the 

results of a 2006 Department of Energy ("DOE") survey of 42 CCR waste management units. 

That DOE report made two critical findings: (i) boiler slag accounted for only about two percent 

of all CCR generated in the U.S.; and (ii) boiler slag accounted for less than one percent of the 

materials disposed of in those 42 CCR waste-management units. [Footnote 40: DOE, Coal 

Combustion Waste Management at Landfills and Surface Impoundments, 1994·2004 (Aug. 

2006) at 4 and 25 (Exhibit 5: DOE, Coal Combustion Waste Management at Landfills and 

Surface Impoundments, 1994-2004 (Aug. 2006)).] EPA's "lumping" approach in this rulemaking 

fails to account for the very small amount of boiler slag generated in this country, the very high 

percentage of boiler slag reuse, the extremely small amount of boiler slag that ends up in 

landfills, the exceedingly small amount of boiler slag that might end up in a surface 

impoundment, and boiler slag's virtually complete resistance to leaching.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-48

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2

Comment Excerpt Text:

Virtually all boiler slag generated in the U.S. is beneficially reused. Each year, the nation's entire 
457

boiler-slag output is approximately 2.2 million tons, and about 2.0 million of those tons are 

reused beneficially. [Footnote 88: See 2009 Coal Combustion Product (CCP) Production & Use 

Survey Report. American Coal Ash Association (November 3,010) (Exhibit 2: 2009 Coal 

Combustion Product (CCP) Production & Use Survey Report, American Coal Ash Association 

(Nov. 3,2010)).] 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Section 2.2.2 - Present disposal and utilization practices

Total Number of Submissions: 6

Total Number of Comments: 13

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-16

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans
458

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. Consideration of the “Present Disposal and Utilization Practices” Reveals the Need for 

Subtitle C Regulation.

Consideration of the “present disposal and utilization practices” reveals serious and widespread 

deficiencies in current state regulatory programs for disposal and reuse of CCRs, which has 

resulted in the construction and operation of unsafe storage and disposal units and dangerous 

reuse applications.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-4

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Present Disposal and Utilization Practices Are Far Improved Over Prior Practices and 

Significantly Diminish Any Rationale for Listing as Special Waste. (Criteria 2) 

Current management practices whereby CCRs are disposed of properly in regulated 

landfills/ponds or utilized as beneficially useful products are fully protective of human health 

and the environment. Such practices are overseen in Ohio by Ohio EPA through mechanisms 

that have been in place for some time. In addition, the Ohio Department of Natural Resources 

(ODNR) regulates the structural integrity of impoundment dikes through its Dam Safety 

program. As such, the potential danger from such facilities is minimized as USEPA itself 

declares"... state regulations have generally improved since 2000. In addition, it would appear

that the industry itself is changing and improving its management practices." [FN 5: 75 Fed. Reg. 

at 35151.]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 
459

Comment Number: EPA-HQ-RCRA-2009-0640-08246-6

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.1

Comment Excerpt Text:

Factors One and Two Show Improvement in Present Disposal and Utilization Practices 

Despite Increased CCR Volumes 

The first two factors, amount and disposal of CCRs, show a decline in the proportionate share of 

CCRs being placed in surface impoundments with a markedly greater proportion being placed in 

landfills or being beneficially used. EPA’s estimates of CCRs generated by coal-fired electric 

generating plants highlight the improvements in CCR disposal or uses in 2008 compared to those 

in 1995: "

[See original comment for table]

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

that in the “mid-1990s” between “62 and 71 million tons of CCRs were generated by coal-fired 

electric power plants.” 75 FR at 35151/1. On the other hand, the Notice states that in 1995, 26.2 

million tons were landfilled, 53.2 million tons were disposed of into surface impoundments, 

another 26.2 million tons were beneficially used, and 9 million tons were placed in mines, id., 

which amounts to a total of 114.6 million tons. That total is approximately 42 million tons more

than the maximum of 71 million tons EPA estimated was generated yearly by electric power 

plants in the mid-1990s. The numbers in the above table were calculated by multiplying the 1995 

disposal and uses percentages (id.) by 71 million tons.]Even though the total amount of electric 

plant CCRs increased by over 90% between the two periods, the amount placed in surface 

impoundment declined by a little more than 10%, while the amounts going into landfills or being 

beneficially used nearly tripled. See 75 FR at 35156/2 (noting “significant increase” in beneficial 

use). The trend shows a lower health risk under existing regulation than was presented with the 

2000 Determination, and thus supports continuation of the Bevill exemption for CCRs.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-17

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
460

Other Sections: 2.2.8

Comment Excerpt Text:

Harsco annually purchases about 1 million tons of boiler slag and incorporates the vast majority 

of each year's purchases in products that beneficially reuse boiler slag. Last year, for example, 

we used about 1.1 million tons of boiler slag in our products. Nearly 50 percent of the boiler slag 

we purchase is used as an abrasive, and about the same amount is incorporated into roofing 

shingles. Approximately two percent of our boiler slag is beneficially reused in other ways, e.g. 

by being used as a road traction material, wastewater filtration system component, glass making 

ingredient, or a mineral filler in asphalt production. Some portion of our annual boiler slag 

purchases may be stockpiled for use in subsequent years, and a small percentage will be 

discarded for failure to meet product specifications.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-25

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1

Comment Excerpt Text:

EPA's approach of lumping boiler slag in a "bottom ash and slag" category without ensuring that 

the reported data actually were representative of boiler slag, is especially troubling given the 

results of a 2006 Department of Energy ("DOE") survey of 42 CCR waste management units. 

That DOE report made two critical findings: (i) boiler slag accounted for only about two percent 

of all CCR generated in the U.S.; and (ii) boiler slag accounted for less than one percent of the 

materials disposed of in those 42 CCR waste-management units. [Footnote 40: DOE, Coal 

Combustion Waste Management at Landfills and Surface Impoundments, 1994·2004 (Aug. 

2006) at 4 and 25 (Exhibit 5: DOE, Coal Combustion Waste Management at Landfills and 

Surface Impoundments, 1994-2004 (Aug. 2006)).] EPA's "lumping" approach in this rulemaking 

fails to account for the very small amount of boiler slag generated in this country, the very high 

percentage of boiler slag reuse, the extremely small amount of boiler slag that ends up in 

landfills, the exceedingly small amount of boiler slag that might end up in a surface 

impoundment, and boiler slag's virtually complete resistance to leaching.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-48

Organization1:Harsco Minerals International, a division of Harsco Corporation
461

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1

Comment Excerpt Text:

Virtually all boiler slag generated in the U.S. is beneficially reused. Each year, the nation's entire 

boiler-slag output is approximately 2.2 million tons, and about 2.0 million of those tons are 

reused beneficially. [Footnote 88: See 2009 Coal Combustion Product (CCP) Production & Use 

Survey Report. American Coal Ash Association (November 3,010) (Exhibit 2: 2009 Coal 

Combustion Product (CCP) Production & Use Survey Report, American Coal Ash Association 

(Nov. 3,2010)).] 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-17

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 3.3.2.7

Comment Excerpt Text:

ATTACHMENT 5

[See EPA-HQ-RCRA-2011-0392-0239-A1, Attachment 5, for PowerPoint presentation “Coal 

Combustion Facility Assessment Report," Stantec Consulting Services, Inc., October 20, 2010]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-18

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 3.3.2.7

Comment Excerpt Text:

ATTACHMENT 6
462

[See EPA-HQ-RCRA-2011-0392-0239-A1, Attachment 6, for report “TVA CCR Disposal 

Facility Assessment”, Stantec Consulting Services, Inc.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-4

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 2.2.3 3.3.2.7 3.3.2.3

Comment Excerpt Text:

In the NODA, EPA noticed new facility and waste management data including the EPA’s Coal 

Combustion Residuals Impoundment Assessment Reports. (See V.2.b.). These reports consist of 

the final contractor reports assessing the structural integrity of 374 surface impoundments 

containing CCRs. [Footnote 3: See 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.] EPA assessed all 

of the known ponds with a hazard potential rating of “high” or “significant,” as reported in the 

responses provided by electric utilities to EPA’s information requests, as well as additional units 

identified during field assessments and a large number of previously “unrated” ponds.

According to EPA, these reports were completed by professional engineers “who are experts in 

the area of dam integrity.” [Footnote 4: Id.] The reports were based on a visual assessment of the 

site, interviews with site personnel, and the review of geotechnical reports and studies related to 

the design, construction and operation of those impoundments, if such reports were available. 

The engineering firms also reviewed past state and federal inspections of the impoundments. The 

contractors rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory,” terms 

commonly used in the field of dam safety.

As described below, the results of the EPA contractors’ inspections indicate a significant level of 

mismanagement of high and significant hazard ponds and a heightened risk to human health and 

the environment that was not known at the time of EPA’s publication of its proposed rule in June 

2010. Therefore EPA should consider all data and findings contained in these inspection reports 

in its determination as to whether CCR should be listed as a hazardous waste pursuant to 40 

C.F.R. § 261.11(a)(3). In addition, the inspection reports are relevant to the analysis required by 

section 8002(n) of the Resource Conservation and Recovery Act (RCRA), specifically section 

8002(n)(2), which requires the evaluation of “present disposal and utilization practices,” and 

section 8002(n)(3), which mandates analysis of the “potential danger, if any, to human health 

and the environment from the disposal and reuse of such materials.” 42 U.S.C. § 6982(n).

Specifically, in deciding whether to list a solid waste as a hazardous waste, section 261.11(a)(3) 

directs EPA to consider a set of eleven factors to determine whether a “waste is capable of 
463

posing a substantial present or potential hazard to human health or the environment when 

improperly treated, stored, transported or disposed of, or otherwise managed.” Two of the eleven 

factors are particularly relevant to the pond inspection reports. Pursuant to section 

261.11(a)(3)(vii), EPA is to consider “the plausible types of improper management to which the 

waste could be subjected” and section 261.11(a)(3)(iii) directs EPA to consider “the potential of 

the constituent ... to migrate from the waste into the environment under the types of improper 

management considered in paragraph (a)(3)(vii).” The pond inspection results described below 

demonstrate that coal ash “is capable of posing a substantial present or potential hazard to human 

health or the environment” when stored in surface impoundments, especially in light of the 

documented types of improper management and the reported instances of migration of CCR 

from such impoundments.

Response: The Agency acknowledges and appreciates the comment. Moreover, the 

commenter is referred to Unit III and Unit VI of the preamble for a discussion how the site 

assessment mentioned in the commenter’s statement were used to support the regulatory 

requirements of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-7

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 3.3.2.7

Comment Excerpt Text:

D. EPA must consider the inspection and condition of Tennessee Valley Authority (TVA) 

surface impoundments.

EPA’s failure to consider the inspection reports and condition of TVA’s many CCR surface 

impoundments renders the Agency’s conclusions on the state of the nation’s ash ponds 

incomplete. The largest coal ash disaster in history occurred at a TVA facility, and TVA operates 

some of the largest and most dangerous coal ash surface impoundments in the U.S. TVA’s 11 

coal-fired power plants alone generate 6.6 million tons of CCRs annually, approximately 5 

percent of the total tonnage of CCRs generated nationally. Reports commissioned by TVA on the 

condition of its 24 coal ash impoundments dated October 2010 and May 2011 demonstrate the 

severity of recent problems at TVA’s ash storage facilities. [Footnote 23: Coal Combustion 

Facility Assessment Report, STANTEC 14 (Oct. 20, 2010), 

http://www.tva.gov/power/stantec2/Oct%202010%20presentation.pdf [hereinafter 2010 TVA 

Report] and John S. Montgomery et al., TVA CCR Disposal Facility Assessment, STANTEC 

AND TVA 5 (May 9 2011), http://www.flyash.info/2011/110-Montgomery-Stantec-2011.pdf 

[hereinafter Stantec 2011], attached to these comments as Attachment 5 and 6, respectively.] 

EPA must add the analyses performed by TVA’s consultants to the docket and consider this 

substantial evidence of mismanagement in the rulemaking.
464

One critical reason why EPA must consider the TVA inspections in its assessment of the 

“plausible types of mismanagement” [Footnote 24: As required by 40 C.F.R. §261.11(a)(3).] and 

the “present disposal and utilization practices” [Footnote 25: As required by 42 U.S.C. § 

8002(n)(3).] is that the TVA inspections included engineering evaluations involving geotechnical 

explorations and hydraulic and hydrologic evaluations. As explained previously, EPA’s 374 

inspections of coal ash ponds consisted only of visual inspections, interviews and document 

reviews. Consequently, the EPA inspectors were often unable to determine the structural stability 

of ponds in the many instances where no previous geotechnical investigations existed. In 

contrast, TVA’s inspections included:

- Drilling, sampling and instrumenting of existing embankment and foundation materials to 

characterize subsurface conditions, and field and laboratory testing to determine engineering 

properties of these materials.

- Slope stability and seepage calculations.

- Hydrologic and hydraulic calculations of impoundments and spillway systems to assess 

freeboard requirements.

- Dam breach analyses including 1-dimensional and 2-dimensional routings of breach 

hydrographs to identify inundation impacts and assess dam safety hazard classification.

- Additional field reconnaissance and observations.

- Developing recommendations and conceptual designs to address identified issues. [Footnote 

26: Stantec 2011 at 2.]

Because of the increased scope of the TVA inspections, information regarding widespread 

instability of TVA’s CCR impoundments came to light, as described below. EPA must place 

these inspection reports in the docket and, in addition, must evaluate them critically.

Because these reports were completed by contractors hired by TVA, [Footnote 27: The TVA 

Office of Inspector General Report dated July 23, 2009 found that previous TVA contractors 

avoided transparency and accountability when evaluating the cause of the Kingston spill, 

available at http://oig.tva.gov/PDF/09rpts/2008-12283-02.pdf.] it is possible that additional 

problems at these impoundments will surface after a more objective evaluation by EPA.

The findings of TVA self-inspections, nevertheless, constitute a scathing indictment of TVA’s 

design, operation and maintenance of CCR impoundments. Upon initial inspection in 2009, fully 

half of TVA’s 24 coal ash ponds had stability less than the federal standard of 1.5. [Footnote 28: 

2010 TVA Report, supra fn 23.] Seven of the ponds—namely two ponds at Bull Run; one at 

Cumberland, Johnsonville, and Paradise; and both ponds at Widows Creek— measured lower 

than 1.3 in stability tests. [Footnote 29: Id at 14.] Three of the ponds that failed the stability test 

were rated high hazard ponds and three are significant hazard. [Footnote 30: Id at 11.] Systemwide concerns affecting these potentially hazardous ponds included weir structures that were tall 

and unsupported. TVA’s weir structures were found typically to be of a type that is prone to 
465

developing leaks. [Footnote 31: John S. Montgomery et al., TVA CCR Disposal Facility 

Assessment, STANTEC AND TVA 5 (May 9 2011), http://www.flyash.info/2011/110-

Montgomery-Stantec-2011.pdf.] TVA’s consultants also found a trend wherein maintenance 

recommendations, like recommendations to clear vegetation from drainage ditches, were made 

multiple years in a row but never carried out. [Footnote 32: Id.] TVA’s ponds were not only 

poorly built; they were also poorly managed, lacking the Emergency Action Plans and 

monitoring equipment necessary to prevent and react to dam failures. [Footnote 33: Id.]

TVA’s unstable ponds required major remediation actions including five spillway replacements. 

[Footnote 34: 2010 TVA Report at 12.] No documentation is publically available to demonstrate 

that the necessary remediation has been completed, despite estimates provided by TVA that all 

remediation would be finished in the third quarter of 2011. As of May 2011, remedial work on 

the TVA ponds was underway for two and a half years and required a cumulative 472,324 manhours to complete. [Footnote 35: 2010 TVA Report at 3, 14.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-9

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 2.2.3 3.3.2.3 3.3.2.7

Comment Excerpt Text:

F. EPA must consider coal ash impoundment inundation maps in evaluating risk to human health 

and the environment.

In order to evaluate the risk to human health and the environment from CCR surface 

impoundments, EPA must obtain and assess inundation maps for all high and significant hazard 

ponds. While some of EPA’s inspection reports include an inundation map, the majority of 

reports do not. In fact, there appear to be no inundation maps for the high hazard ponds that were 

found to be in poor condition. The purpose of inundation maps is to identify what areas would be 

affected by a pond failure. Analysis of these maps would permit EPA to calculate the loss of life 

threatened by failures of high hazard ponds in specific locations, as well as provide information 

regarding the environmental threat to drinking water sources, water bodies, wetlands, and other 

areas by high and significant hazard ponds. EPA could also identify the economic losses and 

disruptions that would occur from the failure of both high and significant hazard dams. This 

inquiry is required by both sections 8002(n)(2) and (3) of RCRA and sections 261.11(a)(3)(iii) 

and (vii).

A cursory examination of a few high hazard CCR impoundments points to the urgent need to 

complete this inquiry and better assess risks from the nation’s 235 high and significant hazard 

ponds. A failure at all of the following CCR ponds would take a significant number of lives and 
466

devastate the adjacent community and its environment. Because inundation maps are not easily 

assessed by the public, EPA must conduct this inquiry and publish the results, which should 

quantify the threat posed by the impoundments in lives and dollars.

1. Little Blue Run Residual Waste Impoundment, Beaver County, Pennsylvania

A failure at the 1300-acre, 400-foot high Little Blue Run Residual Impoundment would endanger 

about 50,000 people, according to the Pennsylvania Department of Environmental Protection. 

[Footnote 39: See http://www.pittsburghlive.com/x/pittsburghtrib/news/regional/s 

_604497.hmtl.]. This unlined impoundment is 30 times larger than the pond that failed in 

Kingston. EPA’s inspection report documents seeps at the pond, and groundwater contamination 

(arsenic above drinking water standards) has been found in residential wells near the 

impoundment. [Footnote 40: Earthjustice, Environmental Integrity Project, Sierra Club. In 

Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their 

Environment,” August 2010, available at www.earthjustice.org/coalash.]

[See original comment for aerial view of Little Blue Run Residential Waste Impoundment 

located on the border of Pennslyvania, West Virginia, and Ohio next to the Ohio River]

2. Cardinal Fly Ash Reservoir, Brilliant, Ohio

AEP’s unlined impoundment at its Cardinal Power Plant is the sixth-largest in the nation. The 

No. 2 dam reaches a height of 230 feet, with the No. 1 dam rising over 50 feet above it. 

[Footnote 41: CLOUGH, HARBOUR & ASSOCIATES (CHA), FINAL REPORT, 

ASSESSMNET OF DAM SAFETY OF COAL COMBUSTION SURFACE 

IMPOUNDMENTS, AMERICAN ELECTRIC POWER, CARDINAL POWER PLANTS 5 

(2009), http://epa.gov/waste/nonhaz/industrial/special/fossil/surgeys2/aep-cardinal-final.pdf.] 

Although clearly the community below the dams would be devastated in the event of a pond 

failure, there is nothing in the record to quantify the lives lost or damage that would result.

[See original comment for aerial view of Cardinal Fly Ash No.1 Dam and No. 2 Dam]

3. Havana East Pond System, Havana, Illinois

According to Dynergy, owner of the Havana Power Station, a failure at its high hazard, 4-cell 

impoundment system could send toxic coal ash five miles downstream, likely enveloping the 

immediately adjacent homes and a school that is located within two miles. [Footnote 42: Kim 

McGuire, Coal Ash Disposal Rules Vary from State to State, THE SOUTHERN NEWS 

SERVICES, Jan. 24, 2009, http://www.thesouthern.com/news/article_beb4d263-d133-5820-

96b4-ab9e80026126.html.]

[See original comment for aerial view of Havana East Ash Pond System]

4. Asheville Surface Impoundment, Asheville, North Carolina

The unlined surface impoundment at Progress Energy’s Ashville Electric Plant was built in 1964. 
467

EPA inspection of the impoundment in May 2009 found it in poor condition. [Footnote 43: 

DEWBERRY & DAVID, INC, FINAL REPORT, COAL COMBUSTION WASTE 

IMPOUNDMENT, DAM ASSESSMENT REPORT, SIT 7, 1982 POND & 1964 POND, 

PROGRESS ENERGY CAROLINAS, ASHEVILLE, NORTH CAROLINA (2009), available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/asheville-final1.pdf.] Among 

the problems noted in the inspection were the absence of a stability analysis and dam break 

analysis, the presence of trees and deep-rooted vegetation on its embankment, and the absence of 

erosion-minimizing rip-rap. Despite the high population density near the pond, there is no record 

in the docket of the area that would be inundated by coal ash should the 45-year old 

impoundment fail.

[See original comment for aerial view of Asheville Surface Impoundment]

5. Cane Run Ash Basin, Louisville, KY

The unlined coal ash impoundment at Louisville Gas and Electric Company’s Cane Run Power 

Station is located across the street from a residential community. [Footnote 44: CLOUGH, 

HARBOUR & ASSOCIATES (CHA), FINAL REPORT, ASSESSMENT OF DAM SAFETY 

OF COAL COMBUSTION SURFACE IMPOUNDMENTS, LOUISVILLE GAS & ELECTRIC 

COMPANY, CANE RUN POWER STATION app. A (2010), 

http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys2/eon-cane-final.pdf.] This 

impoundment was built in 1972 and was not designed or constructed by a professional engineer, 

nor is the impoundment currently maintained by a professional engineer. [Footnote 45: See US 

EPA Impoundment database, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.] There is no data in 

the docket quantifying the threat posed to the adjacent neighborhood in the event of a dam 

failure.

[See original comment for aerial view of Cane Run Ash Basin]

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

referred to Units X and XI of the preamble for a further discussion how EPA evaluated risks to 

human health and the environment in its risk assessment as well as how EPA evaluated the 

damage case reports. Furthermore, the commenter should also referred to the response to 

comment documents supporting these two aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0248-3

Organization1:Headwaters Resources, Inc.

Commenter1:William Gehrmann III

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.8 2.1.3 10.2.2

Comment Excerpt Text:

I. EPA Is Required to Consider the Beneficial Use Data and Information Under the Bevill 
468

Amendment 

As the Utility Solid Waste Activities Group ("USWAG") explained in its comments on the 

proposed rule, [Footnote 1: Headwaters incorporates by reference those portions of USWAG's 

comments regarding the Bevill Amendment requirements and process, found at pages 27-41. 

Comments of The Utility Solid Waste Activities Group, The Edison Electric Institute, The 

American Public Power Association, and The National Rural Electric Cooperative Association 

on Hazardous and Solid Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule, Docket 

No. EPA-HQ-RCRA-2009-0640, at 27-41 (Nov. 19, 2010), available at www.regulations.gov.] 

EPA does not have authority to undertake this rulemaking because EPA properly decided to 

regulate CCRs under Subtitle D, rather than Subtitle C, in its 2000 determination--a 

determination which EPA cannot now reverse. Headwaters agrees with this point. Further, as 

USWAG also stated and as we also agree, even if we assume that somehow EPA could now 

legally reverse its final 2000 regulatory determination for CCRs, EPA could only do that if it 

were to follow the Bevill amendment procedures set forth in the statute for regulating disposed 

CCRs as hazardous waste. See 42 U.S.C. §§ 6921(b)(3)(A) and (C), and 6982(n). As part of 

these procedures, EPA must "conduct a detailed and comprehensive study and submit a report on 

the adverse effects on human health and the environment, if any, of the disposal and utilization 

of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other 

byproduct materials generated primarily from the combustion of coal or other fossil fuels." 42 

U.S.C. § 6982(n). This study must include a detailed analysis and consideration of a number of 

factors: 

(1) "the source and volumes of such material generated per year"; 

(2) "present disposal and utilization practices"; 

(3) "potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials"; 

(4) "documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved"; 

(5) "alternatives to current disposal methods"; 

(6) "the costs of such alternatives"; 

(7) "the impact of those alternatives on the use of coal and other natural resources"; and 

(8) "the current and potential utilization of such materials." 

42 U.S.C. § 6982(n). Factors (2) ("present disposal and utilization practices") and (8) ("the 

current and potential utilization of such materials") specifically relate to beneficial use of CCRs. 

Thus, under the Bevill Amendment, EPA is required to consider data and other information 

relating to beneficial use of CCRs in any rulemaking effort that could result in greater regulation 

of CCRs. . 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 
469

Section 2.2.3 - Potential danger to human health and environment from CCR disposal

Total Number of Submissions: 4

Total Number of Comments: 8

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.2 2.2.4 2.2.5 2.2.6 2.2.7 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-42

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. “The Potential Danger to Human Health and the Environment From the Disposal and 

Reuse of CCRs” Reveals the Need for Subtitle C Regulation. 

Most fundamentally under RCRA and in keeping with Section 6982(n)(3), EPA must analyze the 

potential danger to human health and the environment from the disposal and reuse of CCR. To 

fulfill this statutory mandate, EPA must consider the toxicity of the waste and evaluate the threat 
470

it poses in a variety of current and historical disposal scenarios, as well as a wide range of 

current reuse applications. There are robust data available demonstrating that the threat to human 

health and the environment posed by CCR from both current and past disposal and reuse is 

significant and increasing. This section reviews the data revealing rising toxicity, increasing 

waste volume, documented high risk to people and ecosystems, rampant historic 

mismanagement, and careless and dangerous reuse applications—all of which cause grave 

threats to health and the environment through poisoning of groundwater, surface water, air, soil 

and catastrophic collapse. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-46

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.5.3

Comment Excerpt Text:

2. EPA’s “Human and Ecological Risk Assessment of Coal Combustion Wastes” 

Demonstrates Extremely High Risk to Human Health and the Environment from 

Mismanagement of CCRs.

As EPA notes in the preamble, the Agency’s Health and Ecological Risk Assessment of Coal 

Combustion Wastes (April 2010) provides “further confirmation of the high risks presented in 

the mismanagement of CCRs disposed in landfills and surface impoundments.” [Footnote 218: 

75 Fed. Reg. 35144.] The risks found in this assessment are, in fact, extremely high when 

compared with EPA’s target level of protection of human health and the environment. For this 

rule and for other EPA listing determinations, EPA defined the target level to be an incremental 

lifetime cancer risk of no greater than one in 100,000 (10-5) for carcinogenic chemicals and a 

hazard quotient of 1.0 for noncarcinogenic chemicals. [Footnote 219: Id. EPA uses these same 

target levels in other EPA listing decisions. See, e.g., Final Rule for Nonwastewaters from 

Productions of Dyes, Pigments, and Food Drug and Cosmetic Colorants (70 Fed. Reg. 9144), 

available at http://www.epa.gov/wastes/law-regs/state/revision/frs/fr206.pdf)] Yet the CCR risk 

assessment found that at 90th percentile “the management of CCRs in unlined or clay-lined 

waste management units (WMUs) result in risks greater than the risk criteria of 10-5 for excess 

cancer risk to humans or an HQ greater than 1 for noncancer effects to both human and 

ecological receptors which are the criteria generally used in EPA’s listing determination 

procedure.” [Footnote 220: Id.]

More specifically, as EPA indicates in its preamble:

- 90th percentile risk estimates, for arsenic from unlined surface impoundments are as high as 1 

in 50 (2000 times EPA’s target goal) and non-cancer effects estimates for cobalt were as high as 
471

500 (500 times the target hazard quotient); [Footnote 221: 75 Fed. Reg. at 35,145.]

- 90th percentile risk estimates, for arsenic, antimony and molybdenum that leak from unlined 

landfills, reveal individual lifetime cancer risk is as high as 1 in 2000, 50 times EPA’s target 

goal. [Footnote 222: Id.]

Additional risks above EPA’s benchmark for both 90th and 50th percentile estimates for lined 

and unlined landfills and surface impoundments are summarized in the preamble and set forth in 

the risk assessment. These risks are from a long list of chemicals harmful to human health and 

the environment, including, selenium, boron and lead (in addition to the metals mentioned 

above). 

Clearly the risks found by EPA far exceed target levels for listing, as EPA admits. Congress 

mandates that EPA consider these risks to human health and the environment in deciding 

whether CCR warrants regulation under subtitle C. [Footnote 223: 42 U.S.C. §§ 6942(n)(4), 

6921(b)(3)(C).] Consequently the agency’s obligation to regulate CCRs under subtitle C is clear. 

In this section of our comments, however, we describe numerous ways in which EPA’s 2010 

Risk Assessment significantly underestimated the risk posed by coal ash to human health and the 

environment. Despite the high risks acknowledged in EPA’s risk assessment, the assessment 

nevertheless failed in several critical ways to assess fully and accurately the scope and scale of 

the risks posed by coal ash. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-55

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 6.4.7

Comment Excerpt Text:

i. EPA Must Consider Discharges to Surface Water in the Risk Assessment.

While EPA did evaluate risks posed by groundwater transport to surface waters, EPA claims that 

the risks from direct discharges to surface waters is outside the scope of the risk assessment 

because these discharges are regulated under the Clean Water Act. [Footnote 258: EPA, 2010 

Risk Assessment, at 4-39.] However, RCRA does not preclude EPA from considering potential 

danger and damage from coal combustion waste disposal that is caused by Clean Water Act 

discharges. [Footnote 259: See 42 U.S.C. § 6982(n).] In fact, the statute directs EPA to evaluate 

all “potential danger” from disposal and evaluate damage to human health and the environment 

from leachate. [Footnote 260: 42 U.S.C. § 6982(n)(3), -(4).] Furthermore, the RCRA open dump 

regulations demonstrate that Clean Water Act discharges are not per se excluded from the scope 
472

of RCRA. [Footnote 261: See 40 C.F.R. § 257.3-3(a) (stating that facilities that discharge in 

violation of the Clean Water Act are open dumps).] Finally, EPA itself includes sites that have 

caused damage to the environment from direct discharge to surface waters in its 2007 report 

documenting coal combustion waste damage cases. [Footnote 262: EPA, Coal Combustion 

Waste Damage Assessments, at 12.]

First, the section 8002(n) criteria direct EPA to evaluate the (1) “potential danger, if any, to 

human health and the environment from the disposal and reuse of [coal combustion waste]” and 

(2) “documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved . . . .” [Footnote 263: Id.] The criteria do not exclude potential 

danger from disposal of coal combustion waste that is the result of a direct discharge to surface 

waters. The disposal of these wastes in surface impoundments and landfills creates discharges to 

surface waters. In other words, direct discharges are directly related to, and a component of, the 

disposal of coal combustion waste. As RCRA directs EPA to evaluate all potential danger from 

these wastes, it must assess the danger posed to public health and the environment by direct 

discharges to surface waters.

EPA has recognized this obligation implicitly in the past. In its 2007 report, Coal Combustion 

Waste Damage Assessments, EPA specifically stated that proven damage cases are not limited 

“to those sites with a primary MCL exceedance(s) in ground water distant from the waste 

management unit.” [Footnote 264: Id.] Thus, EPA noted that “[a] case still may be considered 

proven under the scientific investigation test if a scientific study demonstrates there is 

documented evidence of another type of damage to human health or the environment (e.g., 

ecological damage).” [Footnote 265: Id. at 12–13.]

In keeping with this observation, EPA has identified direct discharge to surface waters as the 

basis for consideration as a proven damage case. For example, EPA identified the Georgia Power 

Company’s Plant Bowen coal combustion waste impoundment as a proven damage case based 

on “unpermitted discharge of water containing ash slurry into the Euharlee Creek resulting in a 

temporary degradation of public waters.” [Footnote 266: Id. at 20.] Belews Lake in North 

Carolina is listed as a proven damage case based on “[s]cientific evidence of extensive impacts 

on fish populations due to direct discharge to a surface water body.” [Footnote 267: Id. at 25.] 

Additionally, the Basin Electric Power Cooperative W.J. Neal Station Surface Impoundment in 

North Dakota is an EPA damage case based on a site inspection that “found documentation of 

releases to ground water and surface water from the site.” [Footnote 268: Id. at 36.] There is no 

justification for failing to exclude the exposure pathway documented in these damage cases from 

the risk assessment. The statute directs EPA to consider all potential danger to human health and 

the environment and all damage from leachate, and EPA’s risk assessment should consider risks 

posed by direct discharges of leachate from surface impoundments and landfills.

Second, the RCRA open dumping regulations provide further support that direct discharges from 

coal combustion waste surface impoundments and landfills are within the scope of EPA’s RCRA 

risk assessment. A facility is a RCRA open dump if the facility “cause[s] a discharge of 

pollutants into waters of the United States that is in violation of the requirements of the National 

Pollutant Discharge Elimination System (NPDES) under Section 402 of the Clean Water Act, as 

amended.” [Footnote 269: 40 C.F.R. § 257.3-3(a).] Although several courts have held that 
473

citizens may not enforce violations of 40 C.F.R. § 257.3-3(a), EPA has expressly stated that the 

regulation is valid for determining whether a facility is an open dump. [Footnote 270: EPA, Final 

Rule: Guidelines for Development and Implementation of State Solid Waste Disposal Facilities 

and Practices, 46 Fed. Reg. 47,048, 47,050 (Sept. 23, 1981).]

"[T]oday’s amendments . . . modify the surface-water criterion of § 257-3.3. As originally 

promulgated, that standard would have made discharges violating requirements under Section 

402 or Section 404 of the Clean Water Act open dumping practices as well. A party causing such 

a violation could simultaneously be subject to penalties under the CWA and a citizen suit to 

enjoin ‘open dumping’ under RCRA. Today’s amendment eliminates this double liability. 

However, since the open dump inventory classification for purposes of the State planning 

program does not impose legal sanctions under RCRA, the Criteria retain the provision that a 

violation of Section 402 or Section 404 makes a facility an open dump . . . EPA believes that the 

CWA enforcement mechanisms are sufficient to handle violations under Section 402 and 404. " 

[Footnote 271: Id. (emphasis added).] 

Thus, EPA’s assertion that Clean Water Act discharges are somehow outside the scope of review 

because the risk assessment was undertaken pursuant to RCRA is without merit. EPA must 

consider all potential danger from coal combustion waste disposal and all damage from leachate 

when determining whether Subtitle C regulations are warranted. [Footnote 272: 42 U.S.C. § 

8002(n).] Danger and damage to public health and the environment caused by Clean Water Act 

discharges are not exempt, and EPA must evaluate risks posed by both direct discharges to 

surface waters and groundwater transport to surface water. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. However the commenter is referred to the risk assessment section of the 

preamble which can be found in Unit X. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-5

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.4

Comment Excerpt Text:

Little or No Hard Evidence Exists That the Potential Danger and Documented Proven Damage 

Cases Would Support Listing. (Criteria 3 and 4)

USEPA cites several of what it refers to as ':proven damage cases" as support for its proposal to 

regulate CCRs as a subtitle C special waste. [FN 6: 75 Fed. Reg. at 35234.] However, a review 
474

of these cases shows that a majority of the sites to which USEPA refers can only be classified as 

former sand and gravel pits or other unlined facilities that were used for the historic disposal of 

CCRs (some dating back to the 1940's and 1950's) under practices then considered acceptable. 

Such methods are not now standard practice and therefore are not representative of more recent 

or today's management strategies which are employed at most, if not all CCR disposal facilities. 

In another instance where the agency references a location where CCRs had been placed, as 

USEPA puts it, "under the guise of 'beneficial use'" - the Battlefield Golf Course, USEPA's own 

April 2010 Final Site Inspection Report seems to contradict the agency's position that this site is 

a proven case of danger to human health or the environment. Specifically, this report concluded 

that:

(i) metals contaminants were below MCLs and Safe Drinking Water Act action levels in all 

residential wells that EPA tested; (2) (sic) the residential well data indicate that metals are not 

migrating from the fly ash to residential wells; and (iii) there are no adverse health effects 

expected from human exposure to surface water or sediments on the Battlefield Golf Course site 

as the metal concentrations were below the ATSDR standards for drinking water and soil. 

Additionally, the sediments samples in the ponds were below EPA Biological Technical 

Assistance Group screening levels and are not expected to pose a threat to ecological receptors. 

[FN 7: 75 Fed. Reg. at 35155.]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-8

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.4

Comment Excerpt Text:

Factors Three and Four Present A Number of Open Questions that Call for Resolution and 

Clarification, Rather than for Overinclusive Regulation 

The next Bevill factor analyzed, documented cases of proven health or environmental danger, 

addresses cases involving disposal in unlined units, the Pennsylvania and TVA cases noted 

above, and cases involving the “large-scale placement, akin to disposal, of CCRs, under the guise 

of ‘beneficial use.’” 75 FR at 35155/2. Addressing the latter point, clarification of what are 

permissible beneficial uses would provide certainty for the industry, but the lack of clarity at this 

point is not grounds for imposing subtitle C regulations. As the Notice recognizes, 75 FR at 

3516365, the question of what uses should be considered beneficial raises a panoply of issues 

that have not been fully ventilated, much less resolved. Further, the issues raised do not readily 

lend themselves to a single nationwide answer. See id. at 35163/3 (noting that effects depend "on 
475

the characteristics of the CCR, the amount of material placed, and the site conditions"). 

Despite recognizing that variable conditions affect whether a given use is hazardous in individual 

circumstances and "the many beneficial use opportunities for CCRs," id. 35164/3, the Notice 

favors a prohibition against any unencapsulated CCR use with an opportunity for individual 

projects to seek a waiver. Id. at 35155/1. Either an outright prohibition or removing the Bevill 

exemption for unencapsulated use is likely, however, to stifle innovation, both by discouraging 

development of new uses and by increasing the time and expense of their implementation. If, 

after review of the responses to the questions raised, EPA still believes that federal regulation is 

needed, the better course would be to set minimum standards that must be met, and then allow 

the States to apply those standards in light of the local conditions presented. 

Likewise, with regard to the damage cases resulting from unlined landfills or from stability 

problems, there seems very little, if any, value to imposing hazardous waste standards that 

address a chemical issue, not the physical problems associated with the damage cases. If 

anything, the better course might be to institute dam stability testing and linear requirements in 

those States where such requirements are not already in place. Such an approach would limit any 

variations in implementation and enforcement of cures to the problems that caused these damage 

cases. 

Aside from the disconnect in imposing regulations that address a chemical issue in response to 

physical stability problems, the Notice lacks support for the need for such regulations. The 

Notice states "the potential exists for the chemical characteristics of certain CCRs . . . to 

increase, which could result in increases in releases from management units. . .." 75 FR at 

35153/2. To support this proposition EPA relies on an apples to oranges comparison based on 

references to 1999 CCR chemical data juxtaposed with CCR chemical data developed over the 

past few years. First, the two studies use different methodologies to reach different 

measurements of the chemical characteristics. The 1999 data, developed using EPA's Toxicity 

Characteristic Leaching Procedure (TCLP), an approved 40 C.F.R. Part 136 Method, presents its 

results as mean values. 75 FR at 35138, Table 2. In contrast, the more recent data, developed 

using the "Vanderbilt Method," a method that EPA intends to consider for approval, presents its 

results as ranges. 75 FR at 35141, Table 4. The differences in the methodologies and the 

presentation of results make it nearly impossible to surmise whether any change in the chemical 

composition of CCRs has occurred since the 1999 evaluation. Simply put, EPA has not carried 

its burden to support a showing that a change has occurred since the 2000 determination. 

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-4

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 2.2.2 3.3.2.7 3.3.2.3
476

Comment Excerpt Text:

In the NODA, EPA noticed new facility and waste management data including the EPA’s Coal 

Combustion Residuals Impoundment Assessment Reports. (See V.2.b.). These reports consist of 

the final contractor reports assessing the structural integrity of 374 surface impoundments 

containing CCRs. [Footnote 3: See 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.] EPA assessed all 

of the known ponds with a hazard potential rating of “high” or “significant,” as reported in the 

responses provided by electric utilities to EPA’s information requests, as well as additional units 

identified during field assessments and a large number of previously “unrated” ponds.

According to EPA, these reports were completed by professional engineers “who are experts in 

the area of dam integrity.” [Footnote 4: Id.] The reports were based on a visual assessment of the 

site, interviews with site personnel, and the review of geotechnical reports and studies related to 

the design, construction and operation of those impoundments, if such reports were available. 

The engineering firms also reviewed past state and federal inspections of the impoundments. The 

contractors rated the impoundments as “satisfactory,” “fair,” “poor,” or “unsatisfactory,” terms 

commonly used in the field of dam safety.

As described below, the results of the EPA contractors’ inspections indicate a significant level of 

mismanagement of high and significant hazard ponds and a heightened risk to human health and 

the environment that was not known at the time of EPA’s publication of its proposed rule in June 

2010. Therefore EPA should consider all data and findings contained in these inspection reports 

in its determination as to whether CCR should be listed as a hazardous waste pursuant to 40 

C.F.R. § 261.11(a)(3). In addition, the inspection reports are relevant to the analysis required by 

section 8002(n) of the Resource Conservation and Recovery Act (RCRA), specifically section 

8002(n)(2), which requires the evaluation of “present disposal and utilization practices,” and 

section 8002(n)(3), which mandates analysis of the “potential danger, if any, to human health 

and the environment from the disposal and reuse of such materials.” 42 U.S.C. § 6982(n).

Specifically, in deciding whether to list a solid waste as a hazardous waste, section 261.11(a)(3) 

directs EPA to consider a set of eleven factors to determine whether a “waste is capable of 

posing a substantial present or potential hazard to human health or the environment when 

improperly treated, stored, transported or disposed of, or otherwise managed.” Two of the eleven 

factors are particularly relevant to the pond inspection reports. Pursuant to section 

261.11(a)(3)(vii), EPA is to consider “the plausible types of improper management to which the 

waste could be subjected” and section 261.11(a)(3)(iii) directs EPA to consider “the potential of 

the constituent ... to migrate from the waste into the environment under the types of improper 

management considered in paragraph (a)(3)(vii).” The pond inspection results described below 

demonstrate that coal ash “is capable of posing a substantial present or potential hazard to human 

health or the environment” when stored in surface impoundments, especially in light of the 

documented types of improper management and the reported instances of migration of CCR 

from such impoundments.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 
477

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2011-0392-0239-9

Organization1:Earthjustice, et. al.

Commenter1:Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4 2.2.2 3.3.2.3 3.3.2.7

Comment Excerpt Text:

F. EPA must consider coal ash impoundment inundation maps in evaluating risk to human health 

and the environment.

In order to evaluate the risk to human health and the environment from CCR surface 

impoundments, EPA must obtain and assess inundation maps for all high and significant hazard 

ponds. While some of EPA’s inspection reports include an inundation map, the majority of 

reports do not. In fact, there appear to be no inundation maps for the high hazard ponds that were 

found to be in poor condition. The purpose of inundation maps is to identify what areas would be 

affected by a pond failure. Analysis of these maps would permit EPA to calculate the loss of life 

threatened by failures of high hazard ponds in specific locations, as well as provide information 

regarding the environmental threat to drinking water sources, water bodies, wetlands, and other 

areas by high and significant hazard ponds. EPA could also identify the economic losses and 

disruptions that would occur from the failure of both high and significant hazard dams. This 

inquiry is required by both sections 8002(n)(2) and (3) of RCRA and sections 261.11(a)(3)(iii) 

and (vii).

A cursory examination of a few high hazard CCR impoundments points to the urgent need to 

complete this inquiry and better assess risks from the nation’s 235 high and significant hazard 

ponds. A failure at all of the following CCR ponds would take a significant number of lives and 

devastate the adjacent community and its environment. Because inundation maps are not easily 

assessed by the public, EPA must conduct this inquiry and publish the results, which should 

quantify the threat posed by the impoundments in lives and dollars.

1. Little Blue Run Residual Waste Impoundment, Beaver County, Pennsylvania

A failure at the 1300-acre, 400-foot high Little Blue Run Residual Impoundment would endanger 

about 50,000 people, according to the Pennsylvania Department of Environmental Protection. 

[Footnote 39: See http://www.pittsburghlive.com/x/pittsburghtrib/news/regional/s 

_604497.hmtl.]. This unlined impoundment is 30 times larger than the pond that failed in 

Kingston. EPA’s inspection report documents seeps at the pond, and groundwater contamination 

(arsenic above drinking water standards) has been found in residential wells near the 

impoundment. [Footnote 40: Earthjustice, Environmental Integrity Project, Sierra Club. In 

Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their 

Environment,” August 2010, available at www.earthjustice.org/coalash.]
478

[See original comment for aerial view of Little Blue Run Residential Waste Impoundment 

located on the border of Pennslyvania, West Virginia, and Ohio next to the Ohio River]

2. Cardinal Fly Ash Reservoir, Brilliant, Ohio

AEP’s unlined impoundment at its Cardinal Power Plant is the sixth-largest in the nation. The 

No. 2 dam reaches a height of 230 feet, with the No. 1 dam rising over 50 feet above it. 

[Footnote 41: CLOUGH, HARBOUR & ASSOCIATES (CHA), FINAL REPORT, 

ASSESSMNET OF DAM SAFETY OF COAL COMBUSTION SURFACE 

IMPOUNDMENTS, AMERICAN ELECTRIC POWER, CARDINAL POWER PLANTS 5 

(2009), http://epa.gov/waste/nonhaz/industrial/special/fossil/surgeys2/aep-cardinal-final.pdf.] 

Although clearly the community below the dams would be devastated in the event of a pond 

failure, there is nothing in the record to quantify the lives lost or damage that would result.

[See original comment for aerial view of Cardinal Fly Ash No.1 Dam and No. 2 Dam]

3. Havana East Pond System, Havana, Illinois

According to Dynergy, owner of the Havana Power Station, a failure at its high hazard, 4-cell 

impoundment system could send toxic coal ash five miles downstream, likely enveloping the 

immediately adjacent homes and a school that is located within two miles. [Footnote 42: Kim 

McGuire, Coal Ash Disposal Rules Vary from State to State, THE SOUTHERN NEWS 

SERVICES, Jan. 24, 2009, http://www.thesouthern.com/news/article_beb4d263-d133-5820-

96b4-ab9e80026126.html.]

[See original comment for aerial view of Havana East Ash Pond System]

4. Asheville Surface Impoundment, Asheville, North Carolina

The unlined surface impoundment at Progress Energy’s Ashville Electric Plant was built in 1964. 

EPA inspection of the impoundment in May 2009 found it in poor condition. [Footnote 43: 

DEWBERRY & DAVID, INC, FINAL REPORT, COAL COMBUSTION WASTE 

IMPOUNDMENT, DAM ASSESSMENT REPORT, SIT 7, 1982 POND & 1964 POND, 

PROGRESS ENERGY CAROLINAS, ASHEVILLE, NORTH CAROLINA (2009), available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/asheville-final1.pdf.] Among 

the problems noted in the inspection were the absence of a stability analysis and dam break 

analysis, the presence of trees and deep-rooted vegetation on its embankment, and the absence of 

erosion-minimizing rip-rap. Despite the high population density near the pond, there is no record 

in the docket of the area that would be inundated by coal ash should the 45-year old 

impoundment fail.

[See original comment for aerial view of Asheville Surface Impoundment]

5. Cane Run Ash Basin, Louisville, KY

The unlined coal ash impoundment at Louisville Gas and Electric Company’s Cane Run Power 
479

Station is located across the street from a residential community. [Footnote 44: CLOUGH, 

HARBOUR & ASSOCIATES (CHA), FINAL REPORT, ASSESSMENT OF DAM SAFETY 

OF COAL COMBUSTION SURFACE IMPOUNDMENTS, LOUISVILLE GAS & ELECTRIC 

COMPANY, CANE RUN POWER STATION app. A (2010), 

http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/surveys2/eon-cane-final.pdf.] This 

impoundment was built in 1972 and was not designed or constructed by a professional engineer, 

nor is the impoundment currently maintained by a professional engineer. [Footnote 45: See US 

EPA Impoundment database, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.] There is no data in 

the docket quantifying the threat posed to the adjacent neighborhood in the event of a dam 

failure.

[See original comment for arial view of Cane Run Ash Basin]

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Section 2.2.4 - Proven damage cases from surface runoff or leachate

Total Number of Submissions: 6

Total Number of Comments: 7

Comment Number: EPA-HQ-RCRA-2009-0640-06203-15

Organization1:Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.4

Comment Excerpt Text:

IV. DAMAGE CASES

EPA suggests that the newly identified "damage cases" may warrant reversal of its final 2000 

Regulatory Determination, resulting in the regulation of CCRs under RCRA Subtitle C. [FN 6: 

One of the eight statutory study factors that EPA must evaluate in determining whether CCRs 

warrant regulation under RCRA Subtitle C is "documented cases in which danger to human 

health or the environment from surface runoff or leachate has been proved." RCRA § 8002(n)(4). 

These cases are referred to by EPA as "damage cases." See 75 Fed. Reg. at 35146.] 75 Fed. Reg. 

at 35155-56. However, the new damage cases, which are limited almost exclusively to older, 

unlined units as were the original damage cases, in no way undermine EPA's original decision in 

the 2000 Regulatory Determination that the best means to address the damage cases is to 

"develop national Subtitle D regulations." 65 Fed. Reg. at 32216.
480

At the time of the final 2000 Regulatory Determination, EPA had identified 14

"proven" damage cases[FN 7: "Proven" damage cases "means those cases with (i) Documented 

exceedances of primary maximum contaminant levels (MCls) or other health-based standards 

measured in ground water at sufficient distance from the waste management unit to indicate that 

hazardous constituents have migrated to the extent that they could cause human health concerns, 

and/or (ii) where a scientific study provides documented evidence of another type of damage to 

human health or the environment (e.g., ecological damage), and/or (iii) where there has been an 

administrative ruling or court decision with an explicit finding of specific damage to human 

health or the environment." 75 Fed. Reg. at 35131.] and 36 "potential" damage cases. [FN 8: 

Potential damage case means those cases with documented MCl exceedances that were measured 

in ground water beneath or close to the waste source. In these cases, while the association with 

CCRs has been established, the documented exceedances had not been demonstrated at a 

sufficient distance from the waste management unit to indicate that waste constituents had 

migrated to the extent that they could cause human health concerns. Id.] 75 Fed. Reg. at 35142. 

Since that time, EPA has identified 13 additional proven damage cases and four more potential 

damage cases, bringing the total to 27 proven cases and 40 potential damage cases. Id. at 35143. 

Virtually all of these damage cases involve unlined units that began operation prior to 1990; 

these cases do not involve the newer, lined units that have commenced operation since that time. 

See "Evaluation of Coal Combustion Product Damage Cases," Electric Power Research Institute 

("EPRI"), July 2010 (EPRI Report No.1 020553) ("EPRI Damage Case Report").

The proposed Subtitle D requirements - including the liner, groundwater monitoring, corrective 

action and structural stability requirements - would be fully effective in addressing EPA's 

concerns about the damage case sites without the attendant adverse impacts of the Subtitle C 

option. Therefore, the new damage cases justify neither the reversal of EPA's 2000 final 

Regulatory Determination nor the resulting regulation of CCRs under Subtitle C.

APS also feels it is important to emphasize that it is inappropriate for EPA to include potential 

damage cases in its evaluation of the appropriate regulatory option for CCRs. The Bevill 

Amendment provides that, in considering the "documented cases" of danger from the 

management of CCRs, the Agency was only to evaluate those instances where such danger "has 

been proved." RCRA § 8002(n)(4) (emphasis added). EPA has acknowledged this statutory 

limitation, observing in its final 2000 Regulatory Determination that, although the potential 

damage cases may pose a "potential danger" to human health and the environment in some 

circumstances, they do not "satisfy the statutory criteria of documented, proven damage cases 

because damage to human health or the environment has not been proven ...." 65 Fed. Reg. at 

32225. Therefore, it is inconsistent with the plain language of the statute for EPA to include the 

potential damage cases in its assessment of the "documented cases" of danger to human health 

and the environment from the management of CCRs. EPA cannot use the potential damage cases 

as the foundation for a reversal of its final 2000 Regulatory Determination.

Response: The Agency acknowledges and appreciates the comment. The commenter is 
481

referred to Unit XI of the preamble discussion for a complete assessment of the CCR damage 

cases and the Agency’s rationale for identifying both potential and proven damage cases.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.2 2.2.3 2.2.5 2.2.6 2.2.7 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-57

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.2

Comment Excerpt Text:

D. Analysis of the Documented Cases in which Danger to Human Health or the 

Environment from Surface Runoff or Leachate has been Proved from CCR 

Mismanagement Indicates Unequivocally that Federal Oversight Pursuant to Subtitle C of 

RCRA is Warranted.

In section 8002(n)(4) of RCRA, Congress required EPA to take into account the “documented 
482

cases in which danger to human health or the environment from surface runoff or leachate has 

been proved.” [Footnote 292: 42 U.S.C. § 6982(n)(4).] To perform this analysis, EPA has 

developed over two decades an elaborate system of cataloging potential and proven “damage” 

cases. While these comments will show that the number of proven and potential damage cases, 

as defined by EPA, have increased substantially since the 2000 Determination, we also assert 

that EPA’s interpretation of this requirement is unlawful, and if pursued, will lead to results 

contrary to RCRA.

In section 8002(n)(4), Congress required EPA to assess cases where “danger,” not “damage,” has 

been proved. The distinction between danger and damage is critical—danger speaks to the threat 

posed to health or the environment, while damage represents harm that has already occurred. The 

clear interest of Congress in RCRA is the prevention of “damage” through the identification of 

danger. This is apparent in the language of sections 7002 and 7003 of RCRA. [Footnote 293: 42 

U.S.C. §§ 6972 and 6973.] In both sections, Congress authorized citizens and EPA, respectively, 

to bring suit in the event that solid waste handling, storage, treatment, transport or disposal “may 

present an imminent and substantial endangerment of human health or the environment.” 

[Footnote 294: 42 U.S.C. §§ 6972(a)(1)(B) and 6973(a).] (Emphasis added.) Congress was 

interested foremost in prevention of harm (i.e. in danger, not damage). Thus to file suit under 

either section, neither damage nor even a release of waste was required. Courts have in fact 

found that imminence does not require a showing that actual harm will occur immediately so 

long as risk of threatened harm is present. [Footnote 295: Raytheon Co. v McGraw-Edison Co., 

Inc, 979 F. Supp 858 (E.D. Wis. 1997).] Similarly, the First Circuit Court of Appeals concluded 

that citizens may file suit under section 7002 when there is “a reasonable prospect of future harm 

... so long as the threat is near-term and involves potentially serious harm.” [Footnote 296: Maine 

People's Alliance v. Mallinckrodt, Inc. 471 F. 3d 277 (1st Cir. 2006).]

That said, there is a wealth of evidence that both proven “danger” and damage has occurred at a 

great many CCR storage, disposal and reuse sites. The following section discusses such evidence 

and its implications. In sum, the dramatic increase in the number of damage cases, the severity of 

the harm occurring at the sites, and their distribution throughout the U.S., particularly in the 

states that generate the greatest volumes of CCRs, demonstrate the need for subtitle C regulation.

Management of CCR by states in the absence of minimum safeguards has contaminated water 

supplies, harmed or endangered human health, and harmed biota and the environment throughout 

the US. As of September 2010, some 137 damage sites in 35 states have been either documented 

by the Environmental Integrity Project, Earthjustice and Sierra Club. [Footnote 297: See Envtl. 

Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites 

(Feb. 24, 2010) available at http://www.earthjustice.org/sites/default/files/library/reports/ejeipreportout-of-controlfinal. pdf; Envtl. Integrity Project, Earthjustice, & Sierra Club, In Harm’s 

Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (Aug. 

26, 2010) http://www.earthjustice.org/sites/default/files/files/report-in-harms-way.pdf 

[Hereinafter EIP, Earthjustice, and Sierra Club are collectively referred to as “EIP,” and the 

reports are referred to collectively as “EIP reports.”] or identified as proven or potential damage 

sites by EPA. [Footnote 298: 2007 EPA Damage Case Assessment.] This is more than 17 times 

the number of damage cases identified in EPA’s 1999 Report to Congress on Wastes from the 

Combustion of Fossil Fuels and a three-fold increase from the number of damage cases 
483

acknowledged in EPA’s 2000 Regulatory Determination on these wastes.

The majority of the coal combustion waste damage cases identified by EPA and public interest 

groups reveal that current disposal practices are contaminating ground and surface waters with 

toxic pollution. CCR damage cases are not an artifact of past practices. The contamination is 

pervasive, occurring to date in at least 35 states at levels that have exceeded health-based 

standards in the large majority of instances. The pollution from many CCR disposal sites is 

migrating off-site and poses a grave threat to drinking water sources and our rivers, lakes, and 

streams. This contamination has real consequences for Americans, and many citizens living near 

CCR disposal sites testified about the adverse health effects they experience at the public 

hearings held by EPA in conjunction with this proposed rule. For the most part, states have failed 

to take action to halt and clean up contamination.

Yet EPA’s investigation of damage cases is woefully inadequate. In light of EPA’s statutory 

mandate, EPA must investigate and account for the overwhelming data documenting CCR 

damage cases across the United States. These data irrefutably demonstrate that subtitle C 

regulations are necessary to protect public health and the environment.

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

referred to Unit XI of today’s preamble for a discussion of the assessed damage cases involving 

CCR. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-5

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.3

Comment Excerpt Text:

Little or No Hard Evidence Exists That the Potential Danger and Documented Proven Damage 

Cases Would Support Listing. (Criteria 3 and 4)

USEPA cites several of what it refers to as ':proven damage cases" as support for its proposal to 

regulate CCRs as a subtitle C special waste. [FN 6: 75 Fed. Reg. at 35234.] However, a review 

of these cases shows that a majority of the sites to which USEPA refers can only be classified as 

former sand and gravel pits or other unlined facilities that were used for the historic disposal of 

CCRs (some dating back to the 1940's and 1950's) under practices then considered acceptable. 

Such methods are not now standard practice and therefore are not representative of more recent 

or today's management strategies which are employed at most, if not all CCR disposal facilities. 

In another instance where the agency references a location where CCRs had been placed, as 

USEPA puts it, "under the guise of 'beneficial use'" - the Battlefield Golf Course, USEPA's own 
484

April 2010 Final Site Inspection Report seems to contradict the agency's position that this site is 

a proven case of danger to human health or the environment. Specifically, this report concluded 

that:

(i) metals contaminants were below MCLs and Safe Drinking Water Act action levels in all 

residential wells that EPA tested; (2) (sic) the residential well data indicate that metals are not 

migrating from the fly ash to residential wells; and (iii) there are no adverse health effects 

expected from human exposure to surface water or sediments on the Battlefield Golf Course site 

as the metal concentrations were below the ATSDR standards for drinking water and soil. 

Additionally, the sediments samples in the ponds were below EPA Biological Technical 

Assistance Group screening levels and are not expected to pose a threat to ecological receptors. 

[FN 7: 75 Fed. Reg. at 35155.]

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

referred to Unit XI of today’s preamble for a discussion of the assessed damage cases involving 

CCR. 

Comment Number: EPA-HQ-RCRA-2009-0640-08212-5

Organization1:Utility Water Act Group

Commenter1: Elezabeth E. Aldridge

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.3.2 4.4.5.2.1

Comment Excerpt Text:

II. Placing “Surface Impoundment Integrity” Requirements in NPDES permits is Not Consistent 

with the Bevill Amendment 

To be consistent with Congress’s intent and EPA’s findings under the Bevill Amendment, 

structural integrity requirements for ponds and impoundments should be implemented under 

RCRA Subtitle D and not through the CWA NPDES program. As described in detail in 

USWAG’s comments, Congress added the Bevill Amendment to RCRA to deal with the 

regulation of CCRs. Congress included no special provisions for CCR regulation under the 

CWA. In contrast, the Bevill Amendment required a comprehensive study of the environmental 

risks (including those posed by documented cases of environmentally dangerous surface runoff 

or leachate) associated with CCR storage, treatment, and disposal. 

Given Congress’s special treatment of CCRs under RCRA, and the pending regulatory proposal, 

it makes sense to develop and implement structural integrity requirements for ponds and 

impoundments holding CCRs through the RCRA Subtitle D program. To split off structural 

integrity requirements as special provisions under NPDES permits and have them administered 

by a separate regulatory entity -- while another entity addresses structural and operational 

requirements of CCR landfills through its RCRA powers -- would be administratively inefficient 
485

and not in keeping with Congressional intent. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-8

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.3

Comment Excerpt Text:

Factors Three and Four Present A Number of Open Questions that Call for Resolution and 

Clarification, Rather than for Overinclusive Regulation 

The next Bevill factor analyzed, documented cases of proven health or environmental danger, 

addresses cases involving disposal in unlined units, the Pennsylvania and TVA cases noted 

above, and cases involving the “large-scale placement, akin to disposal, of CCRs, under the guise 

of ‘beneficial use.’” 75 FR at 35155/2. Addressing the latter point, clarification of what are 

permissible beneficial uses would provide certainty for the industry, but the lack of clarity at this 

point is not grounds for imposing subtitle C regulations. As the Notice recognizes, 75 FR at 

3516365, the question of what uses should be considered beneficial raises a panoply of issues 

that have not been fully ventilated, much less resolved. Further, the issues raised do not readily 

lend themselves to a single nationwide answer. See id. at 35163/3 (noting that effects depend "on 

the characteristics of the CCR, the amount of material placed, and the site conditions"). 

Despite recognizing that variable conditions affect whether a given use is hazardous in individual 

circumstances and "the many beneficial use opportunities for CCRs," id. 35164/3, the Notice 

favors a prohibition against any unencapsulated CCR use with an opportunity for individual 

projects to seek a waiver. Id. at 35155/1. Either an outright prohibition or removing the Bevill 

exemption for unencapsulated use is likely, however, to stifle innovation, both by discouraging 

development of new uses and by increasing the time and expense of their implementation. If, 

after review of the responses to the questions raised, EPA still believes that federal regulation is 

needed, the better course would be to set minimum standards that must be met, and then allow 

the States to apply those standards in light of the local conditions presented. 

Likewise, with regard to the damage cases resulting from unlined landfills or from stability 

problems, there seems very little, if any, value to imposing hazardous waste standards that 

address a chemical issue, not the physical problems associated with the damage cases. If 

anything, the better course might be to institute dam stability testing and linear requirements in 

those States where such requirements are not already in place. Such an approach would limit any 

variations in implementation and enforcement of cures to the problems that caused these damage 

cases. 

Aside from the disconnect in imposing regulations that address a chemical issue in response to 

physical stability problems, the Notice lacks support for the need for such regulations. The 

Notice states "the potential exists for the chemical characteristics of certain CCRs . . . to 
486

increase, which could result in increases in releases from management units. . .." 75 FR at 

35153/2. To support this proposition EPA relies on an apples to oranges comparison based on 

references to 1999 CCR chemical data juxtaposed with CCR chemical data developed over the 

past few years. First, the two studies use different methodologies to reach different 

measurements of the chemical characteristics. The 1999 data, developed using EPA's Toxicity 

Characteristic Leaching Procedure (TCLP), an approved 40 C.F.R. Part 136 Method, presents its 

results as mean values. 75 FR at 35138, Table 2. In contrast, the more recent data, developed 

using the "Vanderbilt Method," a method that EPA intends to consider for approval, presents its 

results as ranges. 75 FR at 35141, Table 4. The differences in the methodologies and the 

presentation of results make it nearly impossible to surmise whether any change in the chemical 

composition of CCRs has occurred since the 1999 evaluation. Simply put, EPA has not carried 

its burden to support a showing that a change has occurred since the 2000 determination. 

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

referred to Unit XI of today’s preamble for a discussion of the assessed damage cases involving 

CCR, as well as the response to comment document that addresses damage cases which can be 

identified in the introduction section of the document. 

Comment Number: EPA-HQ-RCRA-2011-0392-0211-11

Organization1:Utility Solid Waste Activities Group (USWAG), et al.

Commenter1:James Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.9

Comment Excerpt Text:

V. The Alleged Damage Cases Presented By Environmental Groups Are Not Proven And Do 

Not Support The Subtitle C Option

The NODA identifies two reports prepared by environmental groups that, when taken together, 

allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. 

The first report, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (“Out 

of Control”), [Footnote 42: Environmental Integrity Project, Earthjustice, Out of Control: 

Mounting Damages From Coal Ash Waste Sites (Feb. 2010) (EPA-HQ-RCRA-2011-0392-

0005).] presents 31 alleged CCR damage cases that EPA explains were not included or 

recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case 

Assessments (“EPA 2007 Report”). 76 Fed. Reg. at 63256. The second report, entitled In Harm’s

Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment (“In 

Harm’s Way”), presents an additional 39 alleged CCR damage cases. [Footnote 43: 

Environmental Integrity Project, Earthjustice, Sierra Club, In Harm’s Way: Lack of Federal Coal 

Ash Regulations Endangers Americans And Their Environment (Aug. 2010) (EPA-HQRCRA2011-0392-0006).] As discussed below, nothing presented in the alleged damage cases in Out of 

Control or In Harm’s Way support the regulation of CCRs under RCRA Subtitle C or undermine 

EPA’s original decision in the 2000 regulatory determination that the best means to address the 
487

damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

Similar to past attempts by environmental groups to inflate the number of proven CCR damage 

cases in this rulemaking, the overwhelming majority of the allegations regarding the 70 sites are 

replete with errors, inaccuracies and misstatements and, most importantly, fail to provide the 

requisite “test of proof” documentation necessary for EPA to characterize virtually any of the 

sites as proven damage cases. EPA should therefore review the allegations with extreme care for 

accuracy and with a skeptical eye, given the propensity for the allegations to contain general 

accusations of damage without the requisite degree of proof to substantiate the claims. Indeed, as 

EPA well knows, prior to initiating this rulemaking, the Agency gathered or received 

information on 135 alleged damage cases, many of which were submitted to EPA by the same 

environmental organizations that prepared Out of Control and In Harm’s Way. See 75 Fed. Reg. 

35128, 35147 (June 21, 2010). After evaluating these earlier allegations, close to half (62) were 

dismissed “because there was little or no information supporting the concerns identified.” Id. 

Another six were outside the scope of the rulemaking. Id. Of the remaining 67 allegations, 24 

were identified as proven damage cases, but this included the 14 proven cases already identified 

in the 2000 regulatory determination. Id. The point is that the track record of the validity of these 

environmental groups’ damage case allegations is astonishingly poor and, as detailed below, the 

additional allegations proffered by these same groups in Out of Control and In Harm’s Way are 

no exceptions to this poor record.

A. Statutory Conditions Related to Reviewing the Alleged Damage Cases

As an initial point, it is important to make clear that it is inappropriate for EPA to rely on damage 

case allegations in any final rulemaking for CCRs before the Agency has fully evaluated the 

allegations and provided an opportunity for public hearing and comment on EPA’s initial 

conclusions. The plain text of the Bevill Amendment commands that this process be followed. 

Specifically, before making any final regulatory determination, EPA is required to submit its 

initial recommendation, along with the reasons for this recommendation, in a report to Congress, 

and to provide an opportunity for public comment and hearings on these initial findings. See 

RCRA § 3001(b)(3)(C). Among the Bevill Amendment study factors that must be addressed in 

the report to Congress is EPA’s evaluation of the “documented cases in which danger to human 

health or the environment from surface runoff or leachate [from CCRs] has been proven.” RCRA 

§ 8002(n).

Therefore, even assuming that EPA is authorized to issue a new regulatory determination for 

CCRs, any proven damage cases that have been considered by EPA as part of that determination 

must be the subject of notice and comment. The mere identification of the alleged damage case 

reports in the NODA cannot serve as substitute for EPA’s statutory obligation under the Bevill 

Amendment for the Agency to evaluate and make an initial finding as to whether allegations are 

proven damage cases and to provide the public with opportunity to review and comment on the 

Agency’s initial findings. As explained above, past experience underscores the importance of 

this statutorily prescribed vetting process, as many of the former allegations of damage cases 

identified by environmental groups have been shown to be without merit and have been 

dismissed by EPA as unsubstantiated and/or incorrect.
488

Further, before addressing the additional alleged damage cases, it is important to emphasize that 

it is inappropriate for EPA to include the so-called “potential” damage cases in its evaluation of 

the appropriate regulatory option for CCRs. As noted above, the Bevill Amendment provides 

that, in considering the “documented cases” of danger from the management of CCRs, the 

Agency was only to evaluate those instances where such danger “has been proved.” RCRA § 

8002(n)(4) (emphasis added). EPA has acknowledged this statutory limitation, observing in its 

final 2000 regulatory determination that, although the potential damage cases may pose a 

“potential danger” to human health and the environment in some circumstances, they do not 

“satisfy the statutory criteria of documented, proven damage cases because damage to human 

health or the environment has not been proven.” 65 Fed. Reg. at 32225. Therefore, it is 

inconsistent with the plain language of the statute for EPA to include any so-called “potential” 

damage cases in EPA’s assessment of the “documented cases” of danger to human health and the 

environment from the management of CCRs. As a consequence, it would be unlawful for EPA to 

consider the alleged “potential” damage cases in Out of Control or In Harm’s Way as support for 

any decision to reverse its final 1993 or 2000 regulatory determination. The alleged “potential” 

damage cases are simply irrelevant to this rulemaking.

B. The Alleged Damage Cases Do Not Have Merit

While it is EPA’s statutory responsibility to make an initial assessment as to whether any of the 

alleged damage cases are proven damage cases [Footnote 44: “Proven damage cases are those 

with (i) documented exceedances of primary MCLs or other health-based standards measured in 

ground water at sufficient distance from the waste management unit to indicate that hazardous 

constituents have migrated to the extent that they could cause human health concerns, and/or (ii) 

where a scientific study demonstrates there is documented evidence of another type of damage to 

human health or the environment (e.g., ecological damage), and/or (iii) where there has been an 

administrative ruling or court decision with an explicit finding of specific damage to human 

health or the environment. In cases of comanagement of CCWs with other industrial waste types, 

CCWs must be clearly implicated in the reported damage.” EPA, Coal Combustion Waste 

Damage Case Assessments 2 n.3 (July 2007). In determining whether evidence of ecological 

damage from a CCR unit constitutes a damage case, EPA stated in the proposed 2010 CCR 

rulemaking that it “now believes that ecological damages warranting state environmental 

response are generally appropriate for inclusion as damage cases,” such as information leading a 

state to issue fish advisories. 75 Fed. Reg. at 35147.] and to provide public with notice and 

opportunity to comment on its initial findings, USWAG has conducted its own initial review of 

the allegations. To do this, USWAG retained Kelron Environmental (“Kelron”) to perform a 

technical assessment of the 70 alleged damage cases identified in the above reports.

In conducting its technical assessment, Kelron reviewed all of the allegations presented in Out of 

Control and In Harm’s Way, including those allegations such as secondary MCLs and other nonhealth based criteria and advisories that are ultimately irrelevant to the analysis because they 

cannot serve as the basis for categorizing a site as a proven damage case. These allegations were 

taken at face value for the purpose of conducting the review and evaluated against the test of 

proof criteria used by EPA in making damage case assessments. Kelron performed this 

comprehensive assessment for purposes of completeness and to preclude any suggestion that it 

was selective in its review of the allegations. Importantly, this comprehensive review, including 
489

Kelron’s inclusion of non-health based allegations in its technical assessments, reveals that the 

vast majority of the alleged damage cases in Out of Control and In Harm’s Way do not, even on 

their face, implicate potential adverse impacts to human health or the environment. Such 

allegations clearly are insufficient under EPA’s test of proof criteria to demonstrate that a 

particular site meets the definition of a proven damage case. In the end, only those allegations 

that meet EPA’s test of proof criteria are relevant in determining whether a site has the potential 

to meet EPA’s definition of a proven damage case. [Footnote 45: The Kelron Report 

appropriately did not evaluate allegations from sources involving NDPES permitted outfalls. The 

Bevill Amendment directs EPA to evaluate documented cases of proven damages from “surface 

runoff or leachate,” which does not encompass authorized parameters under NPDES permits 

which are technically based and would not constitute a “proven damage.” See RCRA § 8002(n). 

Further, RCRA expressly excludes NPDES discharges from RCRA jurisdiction, and hence 

alleged surface water damage from an NPDES permitted outfall would not and could not be 

addressed by future RCRA regulations. See RCRA § 1004(27) (excluding industrial point source 

discharges subject to NPDES permitting from RCRA’s statutory definition of solid waste). 

Moreover, from a “test of proof” perspective, allegations based simply on the level of 

constituents collected from an NDPES outfall cannot meet the definition of a proven damage 

case because such allegations do not constitute a scientific study demonstrating “documented 

evidence of . . . damage to human health or the environment” or an “administrative ruling . . . 

with an explicit finding of specific damage to human health or the environment.” EPA, Coal 

Combustion Waste Damage Case Assessments 2 n.3 (July 2007).] A copy of Kelron’s report, 

including its technical assessments for all 70 of the alleged damage cases, is attached to these 

comments as Attachment A (“Kelron Report”).

For each case where Kelron determined that the allegations for a particular site were facially 

insufficient to meet the test of proof criteria necessary to be evaluated as a proven damage case, 

Kelron identified the deficiencies in the allegations and concluded that the allegations did not 

support characterization of the site as a proven damage case. In those cases where the allegations 

regarding a particular site could potentially be viewed as meeting the test of proof criteria for 

characterizing the site as a proven damage case, Kelron sought to obtain additional background 

information regarding the site from facility owners/operators or from state regulatory bodies to 

better assess the underlying validity, accuracy or comprehensiveness of the allegations. The 

supplemental information obtained from these sources varied, but generally included more 

detailed or up-to-date information regarding the site, including the status of any regulatory and 

remediation actions, as well as corrections to inaccuracies and/or misinformation with respect to 

specific facilities.

Based on the above analysis, Kelron concluded that, of the 70 damage cases alleged in In Harm’s 

Way and Out of Control, only 6 contained allegations that could be viewed as meeting EPA’s 

test of proof criteria for potentially characterizing the site as a proven damage case. Moreover, 

one of these cases had already been determined by EPA to be a proven damage case, effectively 

reducing to 5 the number of cases, out of a total of 70, that could even potentially be viewed as 

additional proven damage cases. Further, 12 of the 70 alleged “new” cases were already 

previously addressed in EPA’s 2007 damage case assessment, [Footnote 46: EPA, Coal 

Combustion Waste Damage Case Assessments (July 2007) (EPA-HQ-RCRA-2006-0796-0015).] 

with five of the sites already rejected by EPA due lack of evidence of damage or lack of evidence 
490

of damage uniquely associated with CCRs, and seven of the sites characterized as indeterminate 

due to insufficient information. The Kelron Report found that no new information regarding 

these 12 sites was contained in the above reports warranting their designation as proven damage 

cases.

For the remaining 6 alleged damage cases where the allegations, taken at face value, could be 

viewed as meeting EPA’s test of proof criteria and thus potentially viewed as proven damage 

cases (including the previously designated proven damage case), Kelron found that these sites 

fell into two categories: (1) sites that are no longer active and where the alleged damages have 

been fully remediated (indeed, in one case the alleged impact surface water body is reported to 

be restored to a quality superior to other non-impacted areas), and (2) sites involving 

circumstances where the alleged damages are currently undergoing remediation with federal 

and/or state oversight. Therefore, the regulation of CCRs under the Subtitle C option (or even 

EPA’s proposed Subtitle D option) would have no impact on addressing these sites, as they are 

all already fully remediated or are undergoing active remediation. Further, as discussed below, 

EPA’s proposed Subtitle D regulations would be just as effective as the Subtitle C option in 

preventing any future CCR damage cases.

It also is important to emphasize that Kelron is not alone in identifying significant inaccuracies 

and outright errors in the vast majority of the alleged damage cases identified Out of Control and 

In Harm’s Way. USWAG understands that state environmental protection agencies, who have 

first-hand knowledge of the many of the alleged damage case sites, also will be commenting on 

the errors in the above reports. For example, the Pennsylvania Department of Environmental 

Protection (“PADEP”) submitted comments on last summer’s CCR proposal with respect to the 

damage case allegations in Out of Control for four facilities located in the southwest region of 

the state. USWAG understands that PADEP is updating these comments to address all the 

alleged damage cases identified in Out of Control and In Harm’s Way in Pennsylvania, but it is 

worth noting that even in its initial comments on the damage case allegations in Out of Control, 

PADEP explained that “[s]ince the EIP report did not contain standard scientific documentation, 

the Department has responded based on a scientific review of each facility’s data and the 

Department’s familiarity of the sites and their groundwater data and impacts.” Commonwealth of 

Pennsylvania Department of Environmental Protection Southwest Region, Review of the 

Environmental Integrity Project and Earthjustice Report: “Out of Control: Mounting Damages 

From Coal Ash Waste Sites”, (October 13, 2010). PADEP “reviewed and responded to each 

specific allegation point by point” and concluded, after a “methodical, organized and scientific 

review” of its data, that “the allegations regarding groundwater and surface water contamination 

by Primary MCL’s are unfounded.” Id.

C. The Proposed Subtitle D Controls Will Address the Alleged Risks Identified in Environmental 

Group Reports 

In addition to the fact that virtually all of the allegations in Out of Control and In Harm’s Way 

fail to demonstrate that any of the sites meet EPA’s definition of a proven damage case, the 

concerns expressed in those reports involve alleged damage to surface and groundwater from 

CCR disposal units that the proposed Subtitle D controls are specifically designed to address. 

EPA has stated repeatedly that the standards for CCR disposal units are identical under both the 
491

Subtitle C and Subtitle D options (75 Fed. Reg. at 35213), with both proposed regulatory 

programs requiring liners and leachate collection systems for new disposal units and lateral 

expansions of existing units, as well as the retrofitting of existing CCR impoundments. See e.g., 

id. at 35243-45 (proposed 40 C.F.R. §§ 257.70-.72). Further, under the Subtitle D option, 

existing CCR disposal units would be subject to groundwater monitoring standards that will 

allow for the early detection of any groundwater contamination from both lined and existing 

unlined units. Id. at 35246 (proposed 40 C.F.R. § 257.90). Finally, the Subtitle D option would 

impose structural integrity requirements on all CCR surface impoundments, thus addressing the 

additional concern with the potential structural failure of such units that served as the basis for 

identifying the TVA Kingston facility and Martin’s Creek Power Plant as proven damage cases. 

Id. at 35243-45 (proposed 40 C.F.R. §§ 257.71(b)-(f), 257.83). While the Subtitle D regulations 

will be effective in preventing future damage cases, as explained above, any of the alleged 

damage cases that EPA may ultimately conclude are proven damage cases already are being 

properly remediated under state and/or federal oversight.

The vast majority of alleged damage cases identified in Out of Control and In Harm’s Way do 

not present adequate information to even be considered as meeting the test of proof criteria 

necessary for EPA to evaluate the sites as proven damage cases. The small number of alleged 

damage cases that, based on the allegations taken at face value, potentially meet the criteria for 

evaluation as a proven damage case, are either inactive units where remediation is complete 

and/or undergoing active remediation. Finally, the proposed Subtitle D regulations will prevent 

future damage cases. Therefore, nothing presented in Out of Control and In Harm’s Way 

supports the authors’ call for the regulation of CCRs under RCRA Subtitle C when EPA’s 

proposed Subtitle D option will effectively address future issues associated with their purported 

concerns regarding CCR management. As USWAG stated in its initial comments on the CCR 

proposal, given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C 

regulation of CCRs “if at all possible” (Envt’l Def. Fund v. EPA, 852 F.2d 1309, 1314 (D.C.Cir. 

1988)), there is no basis for EPA to rely on the damage case allegations in the above reports as 

the basis for pursuing the Subtitle C option

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

referred to Unit XI of today’s preamble for a discussion of the assessed damage cases involving 

CCR. 

Section 2.2.5 - Alternatives to current disposal methods

Total Number of Submissions: 5

Total Number of Comments: 6

Comment Number: EPA-HQ-RCRA-2009-0640-04001-9

Organization1:Coresco, LLC

Commenter1: Carrie D. Lilly

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
492

Other Sections: 2.2.6 2.2.7 9.5.2

Comment Excerpt Text:

3. The Rule fails to thoroughly evaluate the economic impact upon the coal industry

As set forth in the Rule, three of the eight factors that should be analyzed in deciding whether to 

maintain the Bevill exemption for CCRs are: (i) alternatives to current disposal methods, (ii) the 

cost of such alternatives, and (iii) the impact of the alternatives on the use of coal and other 

natural resources. Without limiting our objections to the analysis set forth in the Rule for each of 

the eight factors, we specifically note our objections to the analysis of the said three factors. The 

Rule states that "[.1]here arc no meaningful disposal alternatives other than land disposal" and 

erroneonsly asserts that "[t]he alternative disposal methods mentioned above [i.e., land disposal] 

are not expected to impact the usc of coal or other natural resources," The estimated economic 

impacts set forth in the Rule are based primarily upon projected costs to the electric utility 

industry, The Rule fails to recognize the costs to the mining industry associated with changes to 

the criteria for beneficial use and the potential changes affecting unencapsulated uses, If 

alternative methods are required (such as the usc of liners and caps), the cost to produce coal will 

increase, causing the usc of coal to decrease if other forms of energy become less costly in 

comparison, Additionally, if alternative methods are required, recent increases in the cost for 

calcareous materials (resulting from federal legislation directing funding on road construction 

and repair projects) will further increase the cost to produce coal, thereby decreasing its 

marketability and use, Implementation of the Rule should be suspended and a thorough analysis 

of the impact of the Rule upon the mining industry should be performed, including an analysis of 

the costs associated with increased regulation, increased permitting and compliance 

requirements, and increased cost of labor and materials, including costs associated with 

composite liners,

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

referred to Unit XII of the preamble for a discussion of the cost benefit analysis supporting this 

rule. Furthermore, the commenter is referred to the response to comment document 

supporting the cost benefit analysis. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.6 2.2.7 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 
493

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-6

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.6

Comment Excerpt Text:

Regulatory Alternatives and the Cost Impacts of Those Alternatives Do Not Support Listing. 

(Criteria 5 and 6)

As part of its Regulatory Impact Analysis (RIA) for the proposed rule, USEPA has estimated the 

costs and benefits for each of the regulatory alternatives presented in the proposal, including the 

RCRA subtitle C option. [FN 8: 75 Fed. Reg. at 35215.] The comparison assesses the expected 

costs and anticipated benefits under three different impact scenarios for the beneficial use of 

CCRs (1- increased beneficial use of CCRs resulting from regulation under RCRA subtitle C; 2-

decreased beneficial use of CCRs based on stigma and possible use restrictions under state 

regulation and private sector standards resulting from regulation under RCRA subtitle C; and 3-

no changes to the current beneficial use of CCRs).

USEPA's own cost-benefit assessment is entirely driven by the assumption that recycling rates 

will increase under subtitle C. In fact, according to USEPA's Table 10 on page 35216 of the June 

21, 2010 Federal Register notice, the assumed future increase in CCR beneficial use accounts for 

between 96.8% and 82.6% of the total regulatory benefits assigned to the subtitle C option. 

Absent this assumed increase in beneficial reuse (either a decline in the beneficial use of CCRs 

or no change) the costs of subtitle C regulation vastly outweigh the benefits, as shown on Table 

11 and Table 12 respectively resulting in a negative net benefit and benefit/cost ratios either 

negative or less than one.

These results are further suspect when one considers the assumptions USEPA uses to develop the 

anticipated value of avoided impoundment failure cleanup costs. Under the subtitle C option, the 
494

agency includes in the regulatory benefits a present value for CCR Impoundment Failure 

Cleanup Costs Avoided of between $1.762 billion and $16.732 billion (assuming increased 

beneficial use). [FN 9: 75 Fed. Reg. at 35216.] USEPA explains that these values were based on 

information developed from the 2009 mail survey of 584 CCR impoundments operated by the 

electric utility industry and the number of releases reported. [FN 10: 75 Fed. Reg. at 35214.] As 

described in the RIA, the agency only used those releases which it consider to be significant and 

given what it considers to be limited data, attempts to quantify the avoided costs of future 

failures. One of the failure scenarios considered by the agency in this analysis is the assumed 

failure rate between 10% and 20% within the next 20 years for 96 high-risk CCR impoundments 

identified to be at least 40 feet tall and at least 25 years old. USEPA provides scant information 

to support this assumed failure rate and based on the rarity of significant CCR impoundment 

failures and the high level of oversight given to impoundments by electric utilities, it is likely to 

drastically overstate the probability of future events and therefore the avoided cleanup cost 

benefits.

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

referred to the cost benefit analysis discussed in Unit XII of the preamble as well as all other 

supporting documentation located in the docket supporting the cost benefit analysis.

Comment Number: EPA-HQ-RCRA-2009-0640-08246-9

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.1 10.4.3 2.2.6 2.2.8 2.2.7

Comment Excerpt Text:

Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with 

the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh 

the Projected Benefits 

The remaining four Bevill factors – alternatives to current disposal methods, cost of such 

alternatives, impact of alternatives on use of coal and other natural resources, and current and 

potential use of CCRs – are interrelated. 75 FR at 35156. The Notice takes the sanguine view 

that a rule change would have no effect on the use of coal and other natural resources, and would 

likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id. On the 

latter point, the Notice downplays the potential stigma associated with CCRs’ being designated 

as hazardous (i.e., "special”) waste, stating the beneficial use of CCRs “would not be affected by 

today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the 

evidence suggests that this expectation is unrealistic from both a legal and a factual view. 

From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste 

would likely halt beneficial use production in many, if not most, States given that the law in 

Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE 

Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual 
495

problem with EPA’s sanguine view, viz., currently beneficial uses account for only 37% of all 

CCRs (up to 45% if minefills are included), id. at 35156/1-2, despite a dramatic increase in the 

amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe 

where “nearly all CCRs are beneficially used, and when used are considered to be products 

rather than waste.” Id. at 35164/3. Under U.S. law a similar result would apply; indeed, it 

appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis 

nor a need for regulation. Id. at 35161 n.70 and accompanying text. Similarly, if nearly all CCRs 

are beneficially used, then the designation of hazardous or special waste to the insignificant 

remaining portion of CCRs would likely have little stigmatic or practical adverse effects. 

But where, as in the current U.S. situation, less than half all CCRs are beneficially used, most 

CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific 

electric generation unit can be beneficially used or will require disposal can turn on the vagaries 

of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized 

between beneficial uses and disposal (see 75 FR at 35161/2 (suggesting how an appropriate 

balance can be met)), the reality will likely be much messier, with some CCRs being beneficially 

used and others sent to disposal. Further, even if segregation could be achieved, it can be done 

only at a very high cost. As a result, the industry in general and individual operators specifically 

must be trained to deal with hazardous waste, and then plan and operate their plants at least for 

the immediate future on the basis that a substantial portion of their CCRs will be sent to 

disposal.[Footnote 3:If it is assumed that that the same 60% growth rate in beneficial uses 

experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 

years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the 

Notice indicates when CCR beneficially used products “reach the end of their useful life and are 

to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a 

characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of 

uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in 

contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would 

have very practical and real impacts, not the least of which would be the added financial burden 

on state and local budgets. 

The current increase in beneficial uses of CCRs has occurred without CCRs being designated and 

regulated as hazardous waste, and has been advanced by cooperative efforts between the 

government, academia, and the industry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 

35212/3), very substantial cost savings and economic benefits already realized under the current 

regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” 

approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to 

look for more beneficial uses for their CCRs. But subtitle C regulations would create new 

problems -- state laws that preclude beneficial uses of hazardous waste and negative public 

perception of products made from hazardous (special) waste – that would likely result in a severe 

diminution of CCR beneficial uses. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-1

Organization1:Earthjustice, et. al.
496

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

E. [corrected from A. in second half of split submission] Safe disposal requirements are 

technologically feasible and practical

Fortunately, there are alternatives to the current methods of disposal responsible for the damage 

detailed above. 42 U.S.C. §§ 6982(n)(5) directs EPA to study alternatives to current disposal 

methods, and these factors also compel subtitle C regulation of CCRs.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-2

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4

Comment Excerpt Text:

1. Safe disposal methods are available and technically feasible

EPA admits that improved disposal management practices, such as the installation of liners and 

groundwater monitoring, are indeed practical for CCR disposal. [Footnote 2: 2010 Proposed 

Rule, at 75 Fed. Reg. at 35,156.] In fact, the disposal practices that EPA requires in its subtitle C 

option are similar to the requirements under subtitle D for municipal solid waste landfills, which 

have been in effect since 1991. [Footnote 3: See Criteria for Municipal Solid Waste Landfills, 56 

Fed. Reg. 51,016 (Oct. 9, 1991) (codified at 40 C.F.R. Pt. 258).] The design standards for 

municipal solid waste landfills, like EPA’s proposed subtitle C rule, require the use of a 

composite liner, leachate collection system, groundwater monitoring, run-on/runoff control 

system, fugitive dust control and final impermeable cap. [Footnote 4: 40 C.F.R. § 258.40.] 

[Footnote 5: Id.] [Footnote 6: 40 C.F.R. § 258.51.] [Footnote 7: 40 C.F.R. § 258.26.] [Footnote 

8: 40 C.F.R. § 258.24.] [Footnote 9: 40 C.F.R. § 258.60.] Operating standards for municipal 

solid waste landfills are also similar to the proposed subtitle C requirements and include location 

restrictions, corrective action, and closure requirements. [Footnote 10: 40 C.F.R. §§ 258.10–16.] 

[Footnote 11: 40 C.F.R. § 258.58.] [Footnote 12: 40 C.F.R. § 258.60.] No new technologies need 

to be developed to satisfy the requirement for installation of these basic landfill controls. 

Existing technologies have been in use for decades, and can easily be put to use in the CCR 
497

context. For the last ten years they have been applied to the much larger waste stream of 

municipal solid waste, which, at 253 million tons per year, dwarfs the CCR waste stream. 

[Footnote 13: See EPA, Summary of the Municipal Solid Waste Program, 

http://www.epa.gov/reg3wcmd/solidwastesummary.htm. However, the tonnage managed in 

landfills may be roughly the same, given the high recycling and combustion rates for MSW.] 

Furthermore, EPA estimates that there were roughly 2,300 municipal solid waste landfills in 

operation in 2000, a much larger universe of units on which to impose safeguards and permitting 

requirements. [Footnote 14: See Final Rule, Nonwastewaters From Productions of Dyes, 

Pigments, and Food, Drug, and Cosmetic Colorants, 70 Fed. Reg. 9144, 9146, available at 

http://www.epa.gov/wastes/laws-regs/state/revision/frs/fr206.pdf.] In fact, in a few states that 

already require basic safeguards for CCR disposal, technologies such as liners, leachate 

collection systems, and groundwater monitoring have been applied successfully and without 

undue economic burden to the regulated industry or the state regulatory program. [Footnote 15: 

See, e.g., the Wisconsin Department of Natural Resources coal combustion waste regulatory 

program.]

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Section 2.2.6 - Cost of alternative disposal methods

Total Number of Submissions: 6

Total Number of Comments: 6

Comment Number: EPA-HQ-RCRA-2009-0640-04001-9

Organization1:Coresco, LLC

Commenter1: Carrie D. Lilly

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.5 2.2.7 9.5.2

Comment Excerpt Text:

3. The Rule fails to thoroughly evaluate the economic impact upon the coal industry

As set forth in the Rule, three of the eight factors that should be analyzed in deciding whether to 

maintain the Bevill exemption for CCRs are: (i) alternatives to current disposal methods, (ii) the 

cost of such alternatives, and (iii) the impact of the alternatives on the use of coal and other 

natural resources. Without limiting our objections to the analysis set forth in the Rule for each of 

the eight factors, we specifically note our objections to the analysis of the said three factors. The 

Rule states that "[.1]here arc no meaningful disposal alternatives other than land disposal" and 

erroneonsly asserts that "[t]he alternative disposal methods mentioned above [i.e., land disposal] 

are not expected to impact the usc of coal or other natural resources," The estimated economic 

impacts set forth in the Rule are based primarily upon projected costs to the electric utility 

industry, The Rule fails to recognize the costs to the mining industry associated with changes to 
498

the criteria for beneficial use and the potential changes affecting unencapsulated uses, If 

alternative methods are required (such as the usc of liners and caps), the cost to produce coal will 

increase, causing the usc of coal to decrease if other forms of energy become less costly in 

comparison, Additionally, if alternative methods are required, recent increases in the cost for 

calcareous materials (resulting from federal legislation directing funding on road construction 

and repair projects) will further increase the cost to produce coal, thereby decreasing its 

marketability and use, Implementation of the Rule should be suspended and a thorough analysis 

of the impact of the Rule upon the mining industry should be performed, including an analysis of 

the costs associated with increased regulation, increased permitting and compliance 

requirements, and increased cost of labor and materials, including costs associated with 

composite liners,

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

referred to Unit IV of today’s preamble for a discussion on our decision to regulate CCR under 

subtitle D of RCRA. The commenter is also referred to the benefical use discussion in the 

preamble as well as the cost benefit analysis. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.7 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-6

Organization1:Dayton Power & Light Company (DP&L)
499

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.5

Comment Excerpt Text:

Regulatory Alternatives and the Cost Impacts of Those Alternatives Do Not Support Listing. 

(Criteria 5 and 6)

As part of its Regulatory Impact Analysis (RIA) for the proposed rule, USEPA has estimated the 

costs and benefits for each of the regulatory alternatives presented in the proposal, including the 

RCRA subtitle C option. [FN 8: 75 Fed. Reg. at 35215.] The comparison assesses the expected 

costs and anticipated benefits under three different impact scenarios for the beneficial use of 

CCRs (1- increased beneficial use of CCRs resulting from regulation under RCRA subtitle C; 2-

decreased beneficial use of CCRs based on stigma and possible use restrictions under state 

regulation and private sector standards resulting from regulation under RCRA subtitle C; and 3-

no changes to the current beneficial use of CCRs).

USEPA's own cost-benefit assessment is entirely driven by the assumption that recycling rates 

will increase under subtitle C. In fact, according to USEPA's Table 10 on page 35216 of the June 

21, 2010 Federal Register notice, the assumed future increase in CCR beneficial use accounts for 

between 96.8% and 82.6% of the total regulatory benefits assigned to the subtitle C option. 

Absent this assumed increase in beneficial reuse (either a decline in the beneficial use of CCRs 

or no change) the costs of subtitle C regulation vastly outweigh the benefits, as shown on Table 

11 and Table 12 respectively resulting in a negative net benefit and benefit/cost ratios either 

negative or less than one.

These results are further suspect when one considers the assumptions USEPA uses to develop the 

anticipated value of avoided impoundment failure cleanup costs. Under the subtitle C option, the 

agency includes in the regulatory benefits a present value for CCR Impoundment Failure 

Cleanup Costs Avoided of between $1.762 billion and $16.732 billion (assuming increased 

beneficial use). [FN 9: 75 Fed. Reg. at 35216.] USEPA explains that these values were based on 

information developed from the 2009 mail survey of 584 CCR impoundments operated by the 

electric utility industry and the number of releases reported. [FN 10: 75 Fed. Reg. at 35214.] As 

described in the RIA, the agency only used those releases which it consider to be significant and 

given what it considers to be limited data, attempts to quantify the avoided costs of future 

failures. One of the failure scenarios considered by the agency in this analysis is the assumed 

failure rate between 10% and 20% within the next 20 years for 96 high-risk CCR impoundments 

identified to be at least 40 feet tall and at least 25 years old. USEPA provides scant information 

to support this assumed failure rate and based on the rarity of significant CCR impoundment 

failures and the high level of oversight given to impoundments by electric utilities, it is likely to 

drastically overstate the probability of future events and therefore the avoided cleanup cost 

benefits.
500

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-71

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Indeed, EPA readily acknowledges that one of the express purposes of the Subtitle C option is to 

increase the costs of CCR, relying on the misguided impression that this increased cost will 

somehow increase CCR beneficial use. As discussed below, this is simply wrong.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-9

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.1 10.4.3 2.2.5 2.2.8 2.2.7

Comment Excerpt Text:

Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with 

the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh 

the Projected Benefits 

The remaining four Bevill factors – alternatives to current disposal methods, cost of such 

alternatives, impact of alternatives on use of coal and other natural resources, and current and 

potential use of CCRs – are interrelated. 75 FR at 35156. The Notice takes the sanguine view 

that a rule change would have no effect on the use of coal and other natural resources, and would 

likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id. On the 

latter point, the Notice downplays the potential stigma associated with CCRs’ being designated 

as hazardous (i.e., "special”) waste, stating the beneficial use of CCRs “would not be affected by 

today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the 

evidence suggests that this expectation is unrealistic from both a legal and a factual view. 

From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste 

would likely halt beneficial use production in many, if not most, States given that the law in 

Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE 
501

Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual 

problem with EPA’s sanguine view, viz., currently beneficial uses account for only 37% of all 

CCRs (up to 45% if minefills are included), id. at 35156/1-2, despite a dramatic increase in the 

amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe 

where “nearly all CCRs are beneficially used, and when used are considered to be products 

rather than waste.” Id. at 35164/3. Under U.S. law a similar result would apply; indeed, it 

appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis 

nor a need for regulation. Id. at 35161 n.70 and accompanying text. Similarly, if nearly all CCRs 

are beneficially used, then the designation of hazardous or special waste to the insignificant 

remaining portion of CCRs would likely have little stigmatic or practical adverse effects. 

But where, as in the current U.S. situation, less than half all CCRs are beneficially used, most 

CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific 

electric generation unit can be beneficially used or will require disposal can turn on the vagaries 

of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized 

between beneficial uses and disposal (see 75 FR at 35161/2 (suggesting how an appropriate 

balance can be met)), the reality will likely be much messier, with some CCRs being beneficially 

used and others sent to disposal. Further, even if segregation could be achieved, it can be done 

only at a very high cost. As a result, the industry in general and individual operators specifically 

must be trained to deal with hazardous waste, and then plan and operate their plants at least for 

the immediate future on the basis that a substantial portion of their CCRs will be sent to 

disposal.[Footnote 3:If it is assumed that that the same 60% growth rate in beneficial uses 

experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 

years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the 

Notice indicates when CCR beneficially used products “reach the end of their useful life and are 

to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a 

characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of 

uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in 

contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would 

have very practical and real impacts, not the least of which would be the added financial burden 

on state and local budgets. 

The current increase in beneficial uses of CCRs has occurred without CCRs being designated and 

regulated as hazardous waste, and has been advanced by cooperative efforts between the 

government, academia, and the industry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 

35212/3), very substantial cost savings and economic benefits already realized under the current 

regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” 

approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to 

look for more beneficial uses for their CCRs. But subtitle C regulations would create new 

problems -- state laws that preclude beneficial uses of hazardous waste and negative public 

perception of products made from hazardous (special) waste – that would likely result in a severe 

diminution of CCR beneficial uses. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-4
502

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

F. Analysis of the Costs of Responsible Disposal Confirms the Regulation under Subtitle C 

is Necessary and Appropriate

The costs of responsible CCR disposal are in no way prohibitive. The RIA estimates that the 

engineering controls, land disposal restrictions, and ancillary requirements associated with 

federally enforceable Subtitle C standards would cost $1,474 million per year on an annualized 

basis. The electric power industry can easily absorb these modest expenditures, which will be 

distributed among nearly 500 facilities, and account for about 1% or less of the industry’s annual 

operating cost. And even if all of these expenses are passed along to consumers, the effect on 

electricity rates would be negligible. 

Some power companies already face significant liability for the cleanup of CCR sites that are 

already badly contaminated, or will be in the near future. As EPA has recognized, those 

liabilities are unavoidable and ought not to be charged to the rule, which is primarily designed to 

keep CCR damage from spreading even further. For that reason, it is far more important to 

accurately account for the benefits that would result from the relatively small investment in 

prevention and cleanup that Schedule C standards would require. Each of these points is 

explained further below.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit XII 

for a discussion of the cost benefit analysis as well as the response to comment document 

addressing this issue. 

Section 2.2.7 - Impact of alternative disposal methods on use of coal and other natural 

resources

Total Number of Submissions: 6

Total Number of Comments: 6

Comment Number: EPA-HQ-RCRA-2009-0640-04001-9

Organization1:Coresco, LLC

Commenter1: Carrie D. Lilly

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.5 2.2.6 9.5.2
503

Comment Excerpt Text:

3. The Rule fails to thoroughly evaluate the economic impact upon the coal industry

As set forth in the Rule, three of the eight factors that should be analyzed in deciding whether to 

maintain the Bevill exemption for CCRs are: (i) alternatives to current disposal methods, (ii) the 

cost of such alternatives, and (iii) the impact of the alternatives on the use of coal and other 

natural resources. Without limiting our objections to the analysis set forth in the Rule for each of 

the eight factors, we specifically note our objections to the analysis of the said three factors. The 

Rule states that "[.1]here arc no meaningful disposal alternatives other than land disposal" and 

erroneonsly asserts that "[t]he alternative disposal methods mentioned above [i.e., land disposal] 

are not expected to impact the usc of coal or other natural resources," The estimated economic 

impacts set forth in the Rule are based primarily upon projected costs to the electric utility 

industry, The Rule fails to recognize the costs to the mining industry associated with changes to 

the criteria for beneficial use and the potential changes affecting unencapsulated uses, If 

alternative methods are required (such as the usc of liners and caps), the cost to produce coal will 

increase, causing the usc of coal to decrease if other forms of energy become less costly in 

comparison, Additionally, if alternative methods are required, recent increases in the cost for 

calcareous materials (resulting from federal legislation directing funding on road construction 

and repair projects) will further increase the cost to produce coal, thereby decreasing its 

marketability and use, Implementation of the Rule should be suspended and a thorough analysis 

of the impact of the Rule upon the mining industry should be performed, including an analysis of 

the costs associated with increased regulation, increased permitting and compliance 

requirements, and increased cost of labor and materials, including costs associated with 

composite liners,

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.8

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 
504

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-7

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.8

Comment Excerpt Text:

Unjustified Assumptions on the Impact on Use and Current or Potential Use Do Not Support 

Listing. (Criteria 7 and 8)

It is USEPA's contention that based on past experience with hazardous waste regulations, 

beneficial use rates will increase for CCRs as a result of subtitle C regulation. DP&L disagrees 

with this assumption. In its discussion of the listing of CCR as a special waste to address the 

perceived stigma issue, USEPA attempts to make its case that this will not negatively impact 

beneficial use, despite numerous concerns expressed by state regulatory agencies that a subtitle C 

option may even prohibit beneficial use in their state. [FN 11: 75 Fed. Reg. at 35185.] 

Specifically, USEPA states"...EPA is proposing, as one alternative, to codify the listing in a 

separate, unique section of the regulations... EPA would create a new Subpart F and label the 

section as 'List of Special Wastes Subject to Subtitle C', to distinguish it from the industrial 

hazardous wastes". [FN 12: 75 Fed. Reg. at 35187.] This is analogous to the proverbial wolf in 

sheep's clothing. Simply calling CCRs a "special waste" while subjecting them to the entire array 

hazardous waste regulations when designated for disposal does not eliminate a stigma associated 

with their beneficial use. Testimony to the contrary has already been provided to the agency 

through multiple avenues including the fact that just the specter of subtitle C regulation of CCRs 

has already had a chilling effect on their beneficial use.

Furthermore, this assumption by USEPA ignores the entire concept of market economics. The 

only way a material that normally is a waste would be reused as a product is when the cost of its 

disposal is more than the cost of its reuse and it costs less than an equivalent raw material that it 

is replacing (i.e. there is an economic benefit for all parties involved). USEPA is relying on past 

experience with the industrial hazardous waste sector where wastes that are either listed or 

characteristic can be recycled by being: 1) used or reused as either ingredients or as product 

substitutes, 2) reclaimed, or 3) burned for energy recovery. Thus the primary reason for an 

increase in the recycling of a hazardous waste in the past has been that there is a market for the 

ingredient or product derived from the waste, or the waste is valuable as a fuel. CCRs cannot be 

reclaimed or burned as a fuel so an increase in beneficial reuse can only occur if there is an 
505

increased market for CCRs as an ingredient or product substitute. Simply reclassifying the 

material as hazardous when designated for disposal does not create a market for its reuse. In this 

case, under USEPA's proposed subtitle C approach, there would be an enormous amount of 

CCRs suddenly looking for a market outlet, not finding one and being ultimately disposed of in 

hazardous waste landfills.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-11

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.8

Comment Excerpt Text:

EPA has willfully failed to consider both the impact of those alternatives on the “use of coal and 

other natural resources" and "the current and potential utilization of these materials” as required 

under the Bevill amendment, and as such these sections of the proposed rule are fatally flawed. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-9

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.1 10.4.3 2.2.6 2.2.5 2.2.8

Comment Excerpt Text:

Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with 

the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh 

the Projected Benefits 

The remaining four Bevill factors – alternatives to current disposal methods, cost of such 

alternatives, impact of alternatives on use of coal and other natural resources, and current and 

potential use of CCRs – are interrelated. 75 FR at 35156. The Notice takes the sanguine view 

that a rule change would have no effect on the use of coal and other natural resources, and would 

likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id. On the 

latter point, the Notice downplays the potential stigma associated with CCRs’ being designated 
506

as hazardous (i.e., "special”) waste, stating the beneficial use of CCRs “would not be affected by 

today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the 

evidence suggests that this expectation is unrealistic from both a legal and a factual view. 

From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste 

would likely halt beneficial use production in many, if not most, States given that the law in 

Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE 

Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual 

problem with EPA’s sanguine view, viz., currently beneficial uses account for only 37% of all 

CCRs (up to 45% if minefills are included), id. at 35156/1-2, despite a dramatic increase in the 

amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe 

where “nearly all CCRs are beneficially used, and when used are considered to be products 

rather than waste.” Id. at 35164/3. Under U.S. law a similar result would apply; indeed, it 

appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis 

nor a need for regulation. Id. at 35161 n.70 and accompanying text. Similarly, if nearly all CCRs 

are beneficially used, then the designation of hazardous or special waste to the insignificant 

remaining portion of CCRs would likely have little stigmatic or practical adverse effects. 

But where, as in the current U.S. situation, less than half all CCRs are beneficially used, most 

CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific 

electric generation unit can be beneficially used or will require disposal can turn on the vagaries 

of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized 

between beneficial uses and disposal (see 75 FR at 35161/2 (suggesting how an appropriate 

balance can be met)), the reality will likely be much messier, with some CCRs being beneficially 

used and others sent to disposal. Further, even if segregation could be achieved, it can be done 

only at a very high cost. As a result, the industry in general and individual operators specifically 

must be trained to deal with hazardous waste, and then plan and operate their plants at least for 

the immediate future on the basis that a substantial portion of their CCRs will be sent to 

disposal.[Footnote 3:If it is assumed that that the same 60% growth rate in beneficial uses 

experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 

years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the 

Notice indicates when CCR beneficially used products “reach the end of their useful life and are 

to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a 

characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of 

uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in 

contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would 

have very practical and real impacts, not the least of which would be the added financial burden 

on state and local budgets. 

The current increase in beneficial uses of CCRs has occurred without CCRs being designated and 

regulated as hazardous waste, and has been advanced by cooperative efforts between the 

government, academia, and the industry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 

35212/3), very substantial cost savings and economic benefits already realized under the current 

regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” 

approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to 

look for more beneficial uses for their CCRs. But subtitle C regulations would create new 

problems -- state laws that preclude beneficial uses of hazardous waste and negative public 

perception of products made from hazardous (special) waste – that would likely result in a severe 

diminution of CCR beneficial uses. 
507

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-11

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

G. Analysis of the impact of disposal methods mandated under the proposed subtitle C rule 

indicates that there will be no adverse impact on the use of coal and other natural 

resources.

EPA concludes in the preamble that the disposal methods required under both options, subtitle C 

and D, “are not expected to impact the use of coal or other natural resources.” [Footnote 46: 

2010 Proposed Rule, 75 Fed. Reg. at 35156.]. EPA does point out, however, that an increase in 

beneficial use, which is predicted by EPA under subtitle C, will conserve the natural resources 

by avoiding the use of virgin materials, such as gypsum, aggregate, and ingredients in Portland 

cement. [Footnote 47: Id.].

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Section 2.2.8 - Current and potential use of CCRs

Total Number of Submissions: 10

Total Number of Comments: 18

Comment Number: EPA-HQ-RCRA-2009-0640-06315-14

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.6 2.2.7

Comment Excerpt Text:

In this section of our comments, each factor of section 8002(n) is evaluated in light of the 

considerable evidence and recent data that have come to light since EPA’s 2000 Final 

Determination. [ICF COMMENT ANALYSIS NOTE: for SECTION III. A, which starts page 12 of 
508

original comment #6315.1 through SECTION III. H, which ends on page 153 of original 

comment #10495.1 -- each evaluates one of the eight Befill factors; those comments are usually 

coded to relevant issues within the issue outline instead of directly to 2.2.1 through 2.2.8] In 

section 8002(n), Congress instructed EPA to examine a wide range of factors: volume of coal 

ash; current disposal and use; potential danger from mismanagement, documented cases of 

proven threats to health and the environment, alternatives to current disposal, the cost of such 

alternatives, the impact of regulation on the use of coal and other resources, and current and 

potential reuse of coal ash. Reexamination of all eight study factors reveals that regulation of 

CCRs under RCRA subtitle C of RCRA is clearly warranted.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06352-7

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.7

Comment Excerpt Text:

Unjustified Assumptions on the Impact on Use and Current or Potential Use Do Not Support 

Listing. (Criteria 7 and 8)

It is USEPA's contention that based on past experience with hazardous waste regulations, 

beneficial use rates will increase for CCRs as a result of subtitle C regulation. DP&L disagrees

with this assumption. In its discussion of the listing of CCR as a special waste to address the 

perceived stigma issue, USEPA attempts to make its case that this will not negatively impact 

beneficial use, despite numerous concerns expressed by state regulatory agencies that a subtitle C 

option may even prohibit beneficial use in their state. [FN 11: 75 Fed. Reg. at 35185.] 

Specifically, USEPA states"...EPA is proposing, as one alternative, to codify the listing in a 

separate, unique section of the regulations... EPA would create a new Subpart F and label the 

section as 'List of Special Wastes Subject to Subtitle C', to distinguish it from the industrial 

hazardous wastes". [FN 12: 75 Fed. Reg. at 35187.] This is analogous to the proverbial wolf in 

sheep's clothing. Simply calling CCRs a "special waste" while subjecting them to the entire array 

hazardous waste regulations when designated for disposal does not eliminate a stigma associated 

with their beneficial use. Testimony to the contrary has already been provided to the agency 

through multiple avenues including the fact that just the specter of subtitle C regulation of CCRs 

has already had a chilling effect on their beneficial use.

Furthermore, this assumption by USEPA ignores the entire concept of market economics. The 

only way a material that normally is a waste would be reused as a product is when the cost of its 

disposal is more than the cost of its reuse and it costs less than an equivalent raw material that it 
509

is replacing (i.e. there is an economic benefit for all parties involved). USEPA is relying on past 

experience with the industrial hazardous waste sector where wastes that are either listed or 

characteristic can be recycled by being: 1) used or reused as either ingredients or as product 

substitutes, 2) reclaimed, or 3) burned for energy recovery. Thus the primary reason for an 

increase in the recycling of a hazardous waste in the past has been that there is a market for the 

ingredient or product derived from the waste, or the waste is valuable as a fuel. CCRs cannot be 

reclaimed or burned as a fuel so an increase in beneficial reuse can only occur if there is an 

increased market for CCRs as an ingredient or product substitute. Simply reclassifying the 

material as hazardous when designated for disposal does not create a market for its reuse. In this 

case, under USEPA's proposed subtitle C approach, there would be an enormous amount of 

CCRs suddenly looking for a market outlet, not finding one and being ultimately disposed of in 

hazardous waste landfills.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06842-3

Organization1:Michigan Manufacturers Association

Commenter1: Randall Gross

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.2

Comment Excerpt Text:

Conversely, the continued regulation of fly ash as non-hazardous waste would ensure the safe 

management of fly ash while allowing for its beneficial use, including as an essential ingredient 

in scores of products. This would be consistent with the RCRA, which requires that the EPA 

consider the “current and potential utilization” of CCRs in evaluating its regulatory options for 

CCRs (RCRA § 8002(n)(8)). EPA and the States have consistently recognized that regulating 

CCRs under RCRA Subtitle C would adversely impact their beneficial use. The regulation of 

CCRs under RCRA Subtitle C is at odds with nearly three decades of EPA study and formal 

determinations marked by strong scientific integrity concluding that CCRs do not warrant 

Subtitle C regulation. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06988-11

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow
510

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.7

Comment Excerpt Text:

EPA has willfully failed to consider both the impact of those alternatives on the “use of coal and 

other natural resources" and "the current and potential utilization of these materials” as required 

under the Bevill amendment, and as such these sections of the proposed rule are fatally flawed. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08246-9

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: Parthenia B. Evans and Dennis Lane

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.1 10.4.3 2.2.6 2.2.5 2.2.7

Comment Excerpt Text:

Factors Five through Eight: the Regulatory Choice made Will Affect Beneficial Uses with 

the Result that the Costs Associated with any of the Proposed Rule Changes Far Outweigh 

the Projected Benefits 

The remaining four Bevill factors – alternatives to current disposal methods, cost of such 

alternatives, impact of alternatives on use of coal and other natural resources, and current and 

potential use of CCRs – are interrelated. 75 FR at 35156. The Notice takes the sanguine view 

that a rule change would have no effect on the use of coal and other natural resources, and would 

likely lead to increased beneficial uses of CCRs even under the subtitle C option. Id. On the 

latter point, the Notice downplays the potential stigma associated with CCRs’ being designated 

as hazardous (i.e., "special”) waste, stating the beneficial use of CCRs “would not be affected by 

today’s proposed rule in any case, regardless of the option taken.” 75 FR at 35161/3. But the 

evidence suggests that this expectation is unrealistic from both a legal and a factual view. 

From a legal standpoint, it seems clear that a designation of CCRs as hazardous or special waste 

would likely halt beneficial use production in many, if not most, States given that the law in 

Kansas and other States “prohibits the land disposal of any RCRA hazardous waste.” KDHE 

Comments at 2; see 75 FR at 35156/2 (same for other States). This follows from the factual 

problem with EPA’s sanguine view, viz., currently beneficial uses account for only 37% of all 

CCRs (up to 45% if minefills are included), id. at 35156/1-2, despite a dramatic increase in the 

amount of CCRs put to beneficial uses since 2000. This contrasts with the situation in Europe 

where “nearly all CCRs are beneficially used, and when used are considered to be products 

rather than waste.” Id. at 35164/3. Under U.S. law a similar result would apply; indeed, it 

appears that if 100% of all CCRs were actually beneficially used, there would be neither a basis 
511

nor a need for regulation. Id. at 35161 n.70 and accompanying text. Similarly, if nearly all CCRs 

are beneficially used, then the designation of hazardous or special waste to the insignificant 

remaining portion of CCRs would likely have little stigmatic or practical adverse effects. 

But where, as in the current U.S. situation, less than half all CCRs are beneficially used, most 

CCRs will still be subject to disposal rules. Further, whether CCRs in general or for a specific 

electric generation unit can be beneficially used or will require disposal can turn on the vagaries 

of the market. In contrast to EPA’s view that CCRs from a given plant can be compartmentalized 

between beneficial uses and disposal (see 75 FR at 35161/2 (suggesting how an appropriate 

balance can be met)), the reality will likely be much messier, with some CCRs being beneficially 

used and others sent to disposal. Further, even if segregation could be achieved, it can be done 

only at a very high cost. As a result, the industry in general and individual operators specifically 

must be trained to deal with hazardous waste, and then plan and operate their plants at least for 

the immediate future on the basis that a substantial portion of their CCRs will be sent to 

disposal.[Footnote 3:If it is assumed that that the same 60% growth rate in beneficial uses 

experienced between 2000 and 2008 (from 23% to 37%) could be sustained over the next 16 

years, at that point (2024) beneficial uses would account for 95% of all CCRs. ] In addition, the 

Notice indicates when CCR beneficially used products “reach the end of their useful life and are 

to be disposed of . . . [they] would be subject to RCRA subtitle C if the waste exhibits a 

characteristic of hazardous waste.” 75 FR at 35173/3. This adds another dimension of 

uncertainty and concern that will likely reduce interest in beneficial uses. All this means, in 

contrast to EPA’s sanguine view, is that the choice of subtitle C or subtitle D designation would 

have very practical and real impacts, not the least of which would be the added financial burden 

on state and local budgets. 

The current increase in beneficial uses of CCRs has occurred without CCRs being designated and 

regulated as hazardous waste, and has been advanced by cooperative efforts between the 

government, academia, and the industry. 75 FR at 35161/2. As the Notice summarizes (75 FR at 

35212/3), very substantial cost savings and economic benefits already realized under the current 

regime can only serve to spur the growth of beneficial uses. Rather than building on this “carrot” 

approach, EPA surmises that wielding the “stick” of subtitle C regulations will force utilities to 

look for more beneficial uses for their CCRs. But subtitle C regulations would create new 

problems -- state laws that preclude beneficial uses of hazardous waste and negative public 

perception of products made from hazardous (special) waste – that would likely result in a severe 

diminution of CCR beneficial uses. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08856-8

Organization1:Michigan Chamber of Commerce

Commenter1: Doug Roberts

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.2
512

Comment Excerpt Text:

On the other hand, the regulation of fly ash as non-hazardous waste would ensure the continued 

safe management of fly ash while allowing for its continued beneficial use, including as an 

essential ingredient in scores of products. Such a result would be consistent with RCRA. The 

statute requires that EPA consider the "current and potential utilization" of CCRs in evaluating 

its regulatory options for CCR see RCRA ? 8002(n)(8). EPA and the States have consistently 

recognized that regulating CCRs under RCRA Subtitle C would adversely impact their beneficial 

use. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-17

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2

Comment Excerpt Text:

Harsco annually purchases about 1 million tons of boiler slag and incorporates the vast majority 

of each year's purchases in products that beneficially reuse boiler slag. Last year, for example, 

we used about 1.1 million tons of boiler slag in our products. Nearly 50 percent of the boiler slag 

we purchase is used as an abrasive, and about the same amount is incorporated into roofing 

shingles. Approximately two percent of our boiler slag is beneficially reused in other ways, e.g. 

by being used as a road traction material, wastewater filtration system component, glass making 

ingredient, or a mineral filler in asphalt production. Some portion of our annual boiler slag 

purchases may be stockpiled for use in subsequent years, and a small percentage will be 

discarded for failure to meet product specifications.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10489-49

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
513

Comment Excerpt Text:

For decades the nation's boiler slag has been employed in a variety of uses, including roofing 

shingle components, blasting abrasives, glass-making materials, and road-traction materials. 

These long-standing recycling practices present no significant risks to human health or the 

environment.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-12

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

H. The Current and Potential Utilization of Coal Ash Favors Regulation under Subtitle C

A subtitle C designation for coal ash will increase the flow of ash to uses that are genuinely 

beneficial and prevent sham recycling under the guise of beneficial use. Regulations that require 

responsible management of coal ash will increase disposal costs and create a powerful incentive 

for generators to divert as much of the waste stream as possible to beneficial uses. Opting for 

either of the weaker regulatory options (“D” or “D prime”) will dampen this economic incentive 

considerably. Industry insists that a “special waste” listing under subtitle C will stigmatize coal 

ash and discourage beneficial use. However, there is no evidence to support the speculative 

argument that a hazardous waste label, much less a “special waste” label, would prompt market 

players including consumers to act against their economic (and environmental) interests, 

particularly if EPA is willing to cooperate with industry to educate the public about the 

environmental benefits afforded by safe, encapsulated uses. Historically, even when EPA has 

subjected beneficial uses themselves to regulation — which EPA is not proposing to do here —

beneficial use has only increased. There is no reason to believe that beneficial use will diminish 

under a rule that expressly exempts it from RCRA regulation. To the contrary, effective 

regulation may be expected to decrease negative public perceptions that arise in response to the 

serious damage caused by unsafe coal ash disposal and most notably the disastrous TVA 

Kingston spill.

In any case, EPA cannot reasonably or legally decline to establish the essential safeguards that 

are needed to address proven threats to human health and the environment in order to 

accommodate hypothetical concerns about stigma. As Congress made clear, RCRA is intended 

first and foremost to protect human health and the environment. To the extent it seeks to 

encourage recycling and reuse, it does so with the express intent of reducing the health and 

environmental threats posed by waste disposal. In short, safety must trump stigma concerns.
514

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-17

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.3.1

Comment Excerpt Text:

2. EPA Cannot Properly Base Its Listing Determination on Stigma Concerns

Even if the stigma concerns raised by industry were legitimate—which they are not— they 

would not provide a valid basis for declining to regulate coal ash under RCRA Subtitle C. While 

the Bevill factors arguably require EPA at least to consider stigma, the Bevill factors do do not 

govern EPA’s final decision on its proposed rule. Regardless, EPA must make a decision that 

ensures protection of human health and the environment regardless of any potential stigma.

a. The Bevill factors do not govern EPA’s current proposal to list and promulgate 

regulations for coal ash. 

While the Bevill factors [Footnote 96: 42 U.S.C. § 6982(n).] are applicable to a threshold 

determination whether or not to regulate CCRs, the factors no longer apply after EPA makes a 

decision that regulation is warranted. Thus, the actual listing of CCRs under subtitle C are 

governed by the hazardous waste listing criteris set forth at 40 C.F.R. § 261.11(a). Under the 

Bevill Amendment, EPA was directed to consider the eight study factors for two purposes: to 

make a Report to Congress, [Footnote 97: 42 U.S.C. § 6982(n).] and to determine whether 

regulation is warranted or not. [Footnote 98: 42 U.S.C. § 6921(c).]. Congress did not direct EPA 

to use the Bevill factors when listing the waste or promulgating the regulations themselves. 

EPA already issued several Reports to Congress. [Footnote 99: See, e.g., 1999 Report to 

Congress v. 1&2.]. Furthermore, EPA already made the regulatory determinations required by 

the statute. First, EPA made a regulatory determination in August of 1993 to exempt large 

volumes of coal combustion wastes generated at electric utilities and disposed of in monofills 

from hazardous waste regulation. [Footnote 100: EPA, Final Regulatory Determination on Four 

Large-Volume Wastes From the Combustion of Coal by Electric Utility Power Plants, 58 Fed. 

Reg. 42,466 (Aug. 9, 1993) (to be codified at 40 C.F.R. pt. 261).]. Then, in March of 2000, EPA 

issued a revised regulatory determination that all large-volume wastes land-disposed or disposed 

of in surface or underground mines (monofilled or co-disposed with certain other wastes) would 

be regulated as hazardous waste under a contingent subtitle C listing. [Footnote 101: EPA, 

Regulatory Determination on Wastes from the Combustion of Fossil Fuels (Mar. 5, 2000) (not 

cited in Federal Register, to be codified at 40 C.F.R. pt. 261) (also determining that beneficial 

uses would be exempted from regulation)., available at 
515

http://www.publicintegrity.org/assets/pdf/CoalAsh-Doc7.pdf.]. Then, in May of 2000, EPA made 

another revised regulatory determination to regulate large volume coal ash disposed of or placed 

in mines under subtitle D (with beneficial uses still exempted). [Footnote 102: EPA, Notice of 

Regulatory Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214 

(May 22, 2000) (to be codified at 40 C.F.R. pt. 261).]. 

With these Reports to Congress and regulatory determinations executed, EPA fulfilled all of its 

statutory duties that involved consideration of the Bevill factors. While EPA may still revise its 

regulatory determination, when it makes its ultimate listing decision, EPA is statutorily required 

to consider only the relevant factors for listing wastes under subtitle C or Subtitle D. [Footnote 

103: See 40 C.F.R. §§ 261.11(a), (c). Also, If EPA chooses to designate coal ash as a “special 

waste,” it may also consider modifcations of various statutory requirements pertaining to 

landfills and surface impoundments. See 42 U.S.C. § 6924(x).]. Consequently, the statutory 

factors set forth in the Bevill Amendment do not apply to EPA’s choice between “C” and “D” 

regulation.

The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is directly on 

point. [Footnote 104: Hazardous Waste Treatment Council v. U.S. EPA, 861 F.2d 270, 275 

(D.C.Cir. Oct, 07, 1988) [hereinafter HWTC].]. There, the court held that EPA impermissibly 

considered stigma in deciding how to list recycled use oil when it was only permitted to consider 

stigma for purposes of deciding whether section 6921 criteria were “applicab[le]” to that waste 

stream. [Footnote 105: Id. at 272 (“Section 8 did not direct the EPA to list used oil, but merely to 

“determin[e]” whether used oil meets the statutory and regulatory criteria, and then report that 

determination to Congress. The Agency complied with section 8, reporting to Congress its 

determination that certain types of used oils should be listed as a hazardous waste because of 

their toxic constituents.”).]. The controlling statute, the Used Oil Recycling Act, [Footnote 106: 

Used Oil Recycling Act of 1980 (UORA), 42 U.S.C. § 6935(a), at §§ 7 &8 (1982 & Supp. II 

1984).] required EPA to “make a determination as to the applicability” of recycled used oil to the 

criteria and regulations promulgated under Section 6921 “relating to the characteristics of 

hazardous wastes.” EPA was then required to report that determination to Congress. In making 

the applicability determination, Congress mandated that EPA “shall ensure that the recovery and 

reuse of used oil are not discouraged.” [Footnote 107: Id. ]. 

Subsequently, after EPA had still failed to make a listing determination, the Hazardous and Solid 

Waste Amendments of 1984 [Footnote 108: Hazardous and Solid Waste Amendments of 1984, 

42 U.S.C. § 6935 (Supp. II 1984).] were adopted as a “further prod” [Footnote 109: H.Rep.No. 

198, pt. I, 98th Cong., 1st Sess. 64 (1983), U.S.Code Cong. & Admin.News 1984, 5576.] to the 

Agency, requiring that EPA “shall propose whether to list or identify [recycled used oil] as 

hazardous waste under Section 6921.” [Footnote 110: Hazardous and Solid Waste Amendments 

of 1984, 42 U.S.C. § 6935(b) (Supp. II 1984) (emphasis added).]. When EPA then made its 

decision not to list, the D.C. Circuit held that it was obliged to make its decision based not on the 

applicability criteria relevant to the report but instead “under 6921” itself. Once the reporting 

obligation was fulfilled, the applicability factors were “dead.” [Footnote 111: Id. at 275.]. As the 

Court explained: “[o]nce the Agency had . . . submit[ted] its report to Congress on January 16, 

1981, section 8 had served its purpose and was without further effect. A fortiori, its proviso, 

which applied solely to the Agency’s initial determination, died along with the rest of section 8.” 
516

[Footnote 112: Id.; see also Natural Resources Defense Council, Inc. v. U.S. E.P.A., 25 F.3d 

1063, 1067 (D.C. Cir, 1994) (adopting this same interpretation of the case).]. 

Here, the Bevill factors are similarly inapplicable to EPA’s final listing decision. EPA was 

subject to a Congressional reporting requirement for coal ash, and the relevant statutory 

provision sets forth study factors but not listing factors. [Footnote 113: 42 U.S.C. § 6982(n).]. 

While EPA must determine whether to promulgate regulations based on consideration of the 

Bevill factors, once it has made the decision to regulate, the ordinary listing factors apply. 

[Footnote 114: 42 U.S.C. § 6921(c).]. This makes sense. Once EPA has found that regulation of 

coal ash is warranted, it would defeat RCRA’s overarching purpose to regulate coal ash less 

protectively than the statute and implementing regulations require. Because none of the relevant 

provisions of the Bevill Amendment requires EPA to list coal combustion waste pursuant to the 

Bevill study factors, EPA must make a final listing decision based on the regulatory listing 

criteria, which do not include stigma or even encouragement of reuse as a factor. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-18

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.7

Comment Excerpt Text:

b. The Bevill factors do not require EPA to consider stigma in deciding whether regulation 

is warranted.

Not only is EPA not permitted to consider stigma in determining whether to list coal ash as a 

Subtitle C waste, the Bevill factors do not require EPA to consider stigma in making its threshold 

determination whether regulation is warranted. The Bevill factors are as follows: 

(1) the source and volumes of such material generated per year; 

(2) present disposal and utilization practices; 

(3) potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials; 

(4) documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved; 

(5) alternatives to current disposal methods; 

(6) the costs of such alternatives; 

(7) the impact of those alternatives on the use of coal and other natural resources; and 

(8) the current and potential utilization of such materials. [Footnote 115: 42 U.S.C.A. § 
517

6982(n).]. 

None of these factors directs EPA to consider the impacts of regulation on beneficial use or 

reuse, much less potential stigma impacts. Unlike the statute at issue in Hazardous Waste 

Treatment Council, which provided that EPA “shall ensure that the recovery and reuse of used 

oil are not discouraged,” [Footnote 116: Id.] the Bevill study factors require only that EPA 

consider “the current and potential utilization of such materials.” Thus, there is no need for EPA 

to consider stigma to determine whether regulation of coal ash is appropriate, and indeed, EPA’s 

previous studies of these factors in 1993 and again in 1999 did not even mention the word 

stigma. [Footnote 117: See U.S. EPA, Report to Congress: Wastes from the Combustion of Coal 

from Electric Utility Plants (EPA/530-SW-88-002 (Feb. 1998); U.S. EPA, Report to Congress: 

Wastes from the Combustion of Fossil Fuels (EPA 530-R-99-010) (Mar. 1999).]. 

In 2000, when EPA made yet another a determination (this time that regulation was warranted 

under Subtitle D), EPA considered stigma but admitted that it is unorthodox and in fact contrary 

to the RCRA statute to make stigma a deciding factor. Thus, EPA admitted that “[n]ormally, 

concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, given the 

central concern under the statute for protection of human health and the environment.”

[Footnote 118: U.S. EPA, Notice of Regulatory Determination on Wastes From the Combustion 

of Fossil Fuels, 65 Fed. Reg. 32,214, 32,217 (May 22, 2000) (to be codified at 40 C.F.R. pt. 

261).]. Nevertheless, EPA decided to justify its decision in large part on stigma, reasoning that: 

(1) Subtitle D would be “fully effective in protecting human health and the environment”; and 

(2) beneficial use plays “a large and salutary role . . . for this waste.” [Footnote 119: Id.]. In the 

intervening years since the 2000 regulatory determination, it has become apparent (1) that 

federally enforceable regulation of coal ash is essential and that Subtitle D would not be fully 

protective of human health and the environment [Footnote 120: See Section V, infra.] and (2) 

that many uses that were previously deemed “beneficial,” including structural fills, have now 

been proven to cause significant harm including proven “damage cases.” [Footnote 121: See 

Section II.D.d., supra.]. Consequently, EPA cannot justify another decision to elevate stigma 

concerns over grave health and environmental concerns that mandate a Subtitle C designation. 

EPA is charged with protecting human health and the environment, and that is the lens through 

which EPA is directed to look at the Bevill study factors, including any factor that arguably 

implicates stigma. Congress specifically instructed EPA to “submit a report on the adverse 

effects on human health and the environment, if any, of the disposal and utilization” and that 

report is the document in which the Bevill factors come into play. [Footnote 122: 42 U.S.C. § 

6982(n) (emphasis added).]. 

c. EPA has fielded stigma concerns appropriately in the past.

In the past, EPA has given little weight to stigma arguments where the public could be educated 

that uses in different settings can have different toxicities. Thus, in 1990, EPA caused seven 

ozone-depleting chemicals to be listed as “toxic chemicals subject to reporting under section 313 

of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA)” despite 

concerns raised that the listing would stigmatize recycling of these chemicals. [Footnote 123: 

U.S. EPA, Final Rule: Ozone Depleting Chemicals; Toxic Chemical Release Reporting; 

Community Right-To-Know; Addition of Chemicals, 55 Fed. Reg. 31,594 (Aug. 3, 1990) (to be 
518

codified at 40 C.F.R. pt. 372).]. EPA explained that by listing these chemicals as “toxic 

chemicals” it did not “contend” that these were “directly toxic,” and it properly assumed that the 

public was savvy enough to recognize that toxic pollutants in different scenarios and degrees 

could be more, less, or non-toxic: 

"EPA does not contend that these chemicals are directly toxic. EPA hopes that industry, 

government, and the public will recognize and consider differences in degree and type of toxicity 

of different chemicals when making decisions about those chemicals.” [Footnote 124: Id. at 

31,596.]. 

EPA went on to explain that “where EPA believes that a chemical meets the statutory criteria for 

listing, it cannot choose not to list the chemical simply because its listing may stigmatize the 

chemical. [Footnote 125: Id.]. Similarly, here, EPA cannot choose to avoid a Subtitle C listing on 

stigma grounds, and the public is capable of understanding that coal ash when dumped into 

unlined landfills and surface impoundments poses risks that do not pertain when it is put to a 

beneficial, encapsulated use. 

Where EPA has been willing to entertain stigma concerns, it has determined that it could “avoid 

conceivable stigmatization” by altering the name of the material when recycled even when all 

announcement regarding permits for facilities managing these materials were required to refer 

expressly to “hazardous waste.” [Footnote 126: EPA, Final Rule: Hazardous Waste Management 

System; Definition of Solid Waste, 50 Fed. Reg. 614 (Jan. 4, 1985) (codified at 40 C.F.R. pts. 

260, 261, 264, 265, &266).]. EPA explained: 

"To avoid conceivable stigmatization, EPA proposed that hazardous wastes that are to be 

recycled be called “regulated recyclable materials.” Most comments favored this approach, and 

we are adopting it in the final rule, choosing the less cumbersome name “recyclable material.” 

As stated in the proposal, however, all Section 7004(b) announcements and notices regarding 

permits for facilities managing these materials must still refer to hazardous waste." [Footnote 

127: Id. at 646.]. 

Here, the special waste designation, which would apply to coal ash all the time, would go even 

further to address potential stigma concerns. 

d. The courts disfavor stigma arguments.

Finally, courts are understandably skeptical about stigma arguments. For instance, in 2005, the 

Ninth Circuit reversed a preliminary injunction granted by the District Court of Montana (to 

enjoin implementation of a rule that would have reversed a ban on importation of cows from 

Canada following a mad cow epidemic) because the preliminary injunction was based in part on 

an unsubstantiated “stigma” claim. The court found that:

"The record does not support the district court’s alarmist findings that the “irreparable economic 

harm” the district court foresaw from the stigma of Canadian beef will actually befall the 

American beef industry. Following the case of BSE diagnosed in a Washington State cow in 

2003, consumer demand for, and confidence in, American beef remained strong. According to 
519

USDA, American demand for beef in 2004 is estimated to have increased seven to eight percent 

over 2003 levels. Yet, Canadian beef was flowing into this country throughout 2004 under 

permits issued by USDA. This evidence belies the district court's prediction of catastrophic 

injury to the U.S. beef industry." [Footnote 128: Ranchers Cattlemen Action Legal Fund United 

Stockgrowers of America v. U.S. Dep’t Agriculture, 415 F.3d 1078, 1104–05 (9th Cir. 2005) 

(internal citations omitted).].

Similarly here, there is no reason to give credence to industry’s “alarmist” stigma arguments. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-1

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3

Comment Excerpt Text:

Also included with our comments is the second part of the comments previously submitted to the 

underlying rulemaking docket jointly by the following organizations: EarthJustice, 

Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern 

Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for Social 

Responsibility. Those organizations submitted their original comments to the underlying 

rulemaking in two parts. The first part has been included in the NODA docket as EPA-HQRCRA-2011-0392-0119. The second part was not included, but EPA has acknowledged that it 

should have been included in the NODA docket. As of today it has not yet been inserted into the 

NODA docket. For that reason, we are including in it.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-10

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.7
520

Comment Excerpt Text:

D. The Joint Advocates’ claim that “[t]he courts disfavor stigma arguments” has no merit. In 

their comments, the Joint Advocates contend that “[t]he courts disfavor stigma arguments,” 

EPA-HQ-RCRA-2011-0392-0119 at 126 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 

126). To support this contention, they cite to, and quote from, the decision, Ranchers Cattlemen 

Action Legal Fund United Stockgrowers of America v. U.S. Dep't Agriculture, 415 F. 3d 1078 

(9th Cir. 2005) (Ranchers). As we explain, that decision has no relevancy here and their reliance 

on that case is entirely misplaced.

The specific text from the Ranchers decision on which the Joint Advocates rely is quoted on 

pages 126-27 of their comments. EPA-HQ-RCRA-2011-0392-0119 at 126-27 (previously EPAHQ-RCRA-2009-0640-10495.1 at 126-27). On close reading of that quoted decisional text, it 

becomes immediately clear that the court in that case was not dealing with Bevill wastes. It is 

also clear that the case had nothing whatsoever to do with the degree of proof that the Bevill 

Amendment requires be shown to demonstrate stigma. Rather, the only determination regarding 

stigma addressed by the Ranchers court involved the district court’s issuance of a final rule of the 

Department of Agriculture (USDA) and, more specifically, whether the facts on which district 

court had relied to demonstrate that “the Final Rule carried a definitive risk of causing 

"significant irreparable harm." 359 F.Supp.2d at 1073.

While PCA acknowledges that a demonstration of “irreparable harm” is the evidentiary standard 

required to obtain a preliminary injunction, EPA’s decision on whether to regulate CCRs under 

RCRA subtitle C or D has nothing whatsoever to do with a preliminary injunction. Neither does 

the Bevill Amendment impose an irreparable harm standard. Rather, as Administrator Browner’s 

2000 determination held, it is sufficient for industry to show only that “the link to subtitle C 

would nonetheless tend to discourage purchase and re-use of the waste.” 65 Fed. Reg. at 32217. 

In other words, the Bevill Amendment only requires that there is a “possibility that the [subtitle 

C] approach could have unintended consequences.” Id.

In sum, The Joint Advocates’ reliance on Ranchers is misplaced. Ranchers does not stand for the 

proposition for which it was cited by the Joint Advocates, i.e., that “[t]he courts disfavor stigma 

arguments.” Further, while the concept of “stigma” was mentioned in that case, the case has no 

relevancy whatsoever to this Bevill waste rulemaking and, in particular, to the stigma concerns 

which industry has raised with respect to the regulation of CCRs under subtitle C and EPA’s 

required consideration of stigma as a Bevill factor. [Footnote 24: As articulated in the 9th 

Circuit’s Ranchers decision, stigma” was mentioned once and in a very limited context involving 

the court’s review of the merits of a preliminary injunction: “The district court identified three 

ways in which the Final Rule would cause such harm: the increased risk of vCJD to American 

beef consumers, unspecified environmental injury stemming from USDA’s failure to comply 

with NEPA, and injury to the U.S. beef industry and the U.S. economy that would result from a 

"stigma" that tainted Canadian beef would inflict upon the U.S. meat supply. [Citation omitted.] 

We believe the district court’s calculus overstated the harm that would result from the rule.” 415 

F. 3d at 1104.] Accordingly, the focus of these NODA comments will now shift to a discussion 

of the additional examples of stigma.
521

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-2

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2 10.4.3 2.1.3 2.2 4.1.1

Comment Excerpt Text:

The following summarizes the specific issues we address in these comments:

- PCA’s comments in response to the NODA, including the detailed additional examples of 

stigma that we provide herein, focus on and are in direct response to specific documents, i.e., the 

Fortuna analysis (EPA-HQ-RCRA-2011-0392-0026) and the comments submitted by the Joint 

Advocates (EPA-HQ-RCRA-2011-0329-0119), that EPA has made a subject of this NODA.

- Former Administrator Browner’s sensitivity to avoid needlessly creating a stigma and instead 

regulate initially under subtitle D was, and still is sound policy: “If this conclusion [regulating 

under subtitle D] turns out not to be warranted, we would be inclined to re-examine our current 

decision.”

- Since submitting our initial comments, PCA has learned of a number of additional examples of 

stigma involving coal combustion residuals (CCRs) and the reuse of CCRs for beneficial 

purposes, which discredit and rebut the claims by the Joint Advocates and Fortuna that 

regulating CCRs under subtitle C will not stigmatize CCRs used for beneficial purposes.

- EPA’s Final Plan for conducting periodic retrospective reviews of existing regulations lends 

strong support for regulating CCRs under subtitle D and not under subtitle C.

- The results of a recent sociological study conducted by the University of New Hampshire 

corroborate the validity of industry’s concerns that CCRs used for beneficial purposes can be, 

and are being, stigmatized by the array of negative information being published and disseminated 

by the advocates of the subtitle C option, and by others, and that such information is fostering 

and reinforcing the public’s opposition to beneficial uses of CCRs generally and, in particular, 

belief that products containing CCRs should be avoided whenever possible.

- A recent article published by, and for, the property and casualty sector of insurance industry, 

calling CCRs the “next asbestos,” provides good and reliable evidence that CCRs have already 

been stigmatized.

- Comments submitted to this docket by opponents of the subtitle D options provide an excellent 

demonstration of the efforts taking place to smear and ultimately stigmatize CCRs and the reuse 

and recycling of CCRs.
522

- The campaign against the use of CCRs for sandblasting and roofing shingles provides a good 

example of how negative advertising is already being used and re-circulated in order to 

stigmatize products whose ingredients include CCRs.

- EPA should not treat a stigma report prepared for the leading opponents to the subtitle D option 

as “expert opinion” and/or give the report’s analysis and conclusions deference and/or preference 

over the stigma concerns and comments supporting stigma submitted by industry and others.

- EPA is required by law to consider the stigma effect that regulating CCRs under RCRA subtitle 

C would, or might, have on the current and future beneficial use of CCRs.

- Opponents of the subtitle D options have not demonstrated that the stigma concerns that have 

been presented to EPA are fallacious.

- Industry, state governments, and others have demonstrated in comments and with examples that 

the stigmatization of CCRs reuse has already begun to occur.

- Individual members of the U.S. Green Building Council’s (USGBC) “knowledgeable panel of 

professionals” have posted advice and recommendations on the USGBC website which are 

effectively lending unwarranted credence to the negative information and stigma being promoted 

about CCR reuses.

- Opponents of the subtitle D options have presented erroneous legal arguments regarding the 

Bevill factors and their irrelevancy to EPA’s final decision in this rulemaking.

- Opponents of the subtitle D options have effectively conceded that the potential for CCRs and 

their reuses to be stigmatized does exist.

- Claims that the courts disfavor stigma arguments have no merits.

- Opponents of the subtitle D options are engaging in a smear campaign that includes the 

widespread dissemination of false and misleading information, innuendo, and the raising of 

specious issues, all carefully crafted to inflame the public and instill public fear of CCRs and 

virtually all reuses of CCRs.

- Opponents of the subtitle D options erroneously and disingenuously argue that if a particular 

reuse of CCRs might be “dangerous” it cannot be “beneficial.”

- Opponents of the subtitle D options have sought to demonize all unencapsulated uses of CCRs, 

and do so without any consideration of whether appropriate control measures could be put into 

place or if a particular use is minimal.

- Opponents of the subtitle D options have cited research results for erroneous propositions 

and/or out of context in order to promote public fear of, and opposition to, encapsulated reuses of 

CCRs generally.
523

- Opponents of the subtitle D options have cited examples of “miscellaneous” reuses of CCRs 

that they know, or at the very least should know, are not relevant to this rulemaking, in order to 

stimulate public doubt and fear about CCR recycling and reuse and thus foster public opposition 

to the use of coal as an industrial fuel source.

- The negative comments and advocacy tactics being used by opponents of the subtitle D options 

will be a direct cause of the decrease in the reuse and recycling of CCRs that will occur in the 

event CCRs are regulated under subpart C.

- The public education program that opponents of the subtitle D options advocate will be 

incapable of overcoming the stigma and fear of CCR reuses that those opponents have already 

generated and are continuing to promote.

Response: The Agency acknowledges and appreciates the comment and refers the comment to 

the specific sections of the preamble pertaining to their specific comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-20

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3 10.4.7

Comment Excerpt Text:

[ATTACHMENT: 

See original comment for Attachment A2 -- PCA submitted the second part of the comments 

previously submitted to the proposed CCR rule docket jointly by the following organizations: 

EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, 

Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physicians for 

Social Responsibility.]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-6

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3

Comment Excerpt Text:

2. Contrary to the Fortuna report, as well as arguments presented by other advocates of the 
524

subtitle C option, EPA is required by law to consider the stigma effect that regulating CCRs 

under RCRA subtitle C would, or might, have on the current and future beneficial use of CCRs. 

[Footnote 17: Fortuna’s argument that EPA’s consideration of stigma is illegal was also made in 

the second part of the comments submitted by the Joint Advocates (EarthJustice, Environmental 

Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean 

Energy, Southern Environmental Law Center, and Physicians for Social Responsibility), EPAHQ-RCRA-2009-0640-10495.1, that EPA failed to insert into the NODA docket. Fortuna’s 

purported legal analysis is discussed in this section of PCA’s NODA comments. PCA rebuttal to 

the legal analysis presented by Joint Advocates is addressed separately in Section B of these 

comments.] Fortuna’s report asserts it would be “illegal” for EPA to consider the factor of stigma 

in this rulemaking. See EPA-HQ-RCRA-2011-0392-0026 at 28 (previously EPA-HQ-RCRA2009-0640-9634.1 at 28), where the report’s contention is captioned: “‘Stigma’ Under RCRA is 

Illegal.” The report’s contention is wrong, legally!

Fortuna’s assertion is based on the author’s reliance upon a decision by the Circuit Court of 

Appeals for the District of Columbia, Hazardous Waste Treatment Council v. EPA, 861 F. 2d 

270 (D.C. Cir. 1988) (HWTC). Fortuna’s reliance on that decision is misinformed and 

misplaced. HWTC did not concern the scope of EPA’s authority under the Bevill Amendment 

that is the subject of this rulemaking. Rather, HWTC dealt solely with the EPA Administrator’s 

authority to decide “whether to list or identify used automobile and truck crankcase oil, i.e., 

non-Bevill wastes, as hazardous waste” (emphasis supplied), pursuant to 42 U.S.C. 6935. HWTC 

has no relevancy to this rulemaking whatsoever. [Footnote 18: The HWTC case was also cited in 

comments submitted to this docket by the Center for Progressive Reform (CPR). EPA-HQRCRA-2009-0640-8847 and in the Joint Advocates comments. EPA-HQ-RCRA-2009-0640-

10495.1. CPR’s comments, however, do not rely upon the identical reading (i.e., misreading) of 

HWTC that both the Fortuna analysis and Joint Advocates present in their respective comments. 

Rather, CPR cites HWTC as a basis for EPA to downplay the relevance, or at very least 

insignificance, of stigma as a factor to be considered in RCRA rulemakings, asserting that 

HWTC demonstrates that “Congress was concerned that forcing an agency to worry about 

stigma effects when it is sorting through waste streams to determine which are hazardous could 

well prove a recipe for paralysis.” EPA-HQ-RCRA-2009-0640-8847 at 16. However, CPR’s 

reliance on HWTC is equally in error, and irrelevant to a Bevill rulemaking, just as Fortuna and 

the Joint Advocates err in their reliance on HTWC. In fact, the Joint Advocates have effectively 

conceded the irrelevance of HWTC in their comments, EPA-HQ-RCRA-2009-0640-10495.1 at 

123, wherein they state that the controlling statute in HWTC was the Used Oil Recycling Act, 42 

U.S.C. § 6935(a) and not the Bevill Act provision that governs here, 42 U.S.C. § 6982(p).]

Contrary to Fortuna, the factors specified by RCRA section 8002(n), commonly-known as the 

Bevill Amendment and codified at 42 U.S.C. 6982(p), are what exclusively govern this 

rulemaking; not § 6935. As former EPA Administrator Browner acknowledged unequivocally in 

her 2000 determination: “Section 8002(n) (8) directs us to consider, among other factors, “the 

current and potential utilization of such materials” (emphasis supplied), 65 Fed. Reg. at 32217 

(May 22, 2000). That directive, according to Administrator Browner, clearly includes EPA’s 

need to consider the impact that a stigma would have on both the current and potential beneficial 

use of CCRs. [Footnote 19: It is worth noting that the Center for Progressive Reform’s 

comments, cited above in fn. 16, conceded that Congress did, in fact, legislate the specific 
525

directive that EPA consider stigma as part of the Bevill amendment. EPA-HQ-RCRA-2009-

0640-8847 at 16.]

Administrator Browner properly recognized the need to consider legitimacy of industry’s 

individual and collective stigma concerns in her 2000 Bevill determination. She was likewise 

correct when she concluded the need for EPA to avoid regulating Bevill wastes in a manner that 

could create a stigma: “We do not wish to place any unnecessary barriers on the beneficial uses 

of these wastes, because they conserve natural resources, reduce disposal costs and reduce the 

total amount of waste destined for disposal.” Id. She also rightly observed: “If this conclusion 

[regulating under subtitle D] turns out not to be warranted, we would be inclined to re-examine 

our current decision.” 65 Fed. Reg. at 32218.

Regardless of what Fortuna, and his report’s sponsors and supporting organizations, now urge, 

EPA cannot ignore considering the stigma effects and consequences that regulating CCR wastes 

under RCRA subtitle C could have on the current and potential beneficial use of such materials. 

As EPA has previously determined, it is statutorily required to consider and take into account the 

stigma and other unnecessary barriers that would be imposed on beneficial uses of CCRs if the 

subtitle C option is adopted.

The statute has not changed since Administrator Browner made her determination in 2000 and no 

amount of effort by subtitle C’s advocates to reinterpret the statute can – or should -- change that. 

The statutory analysis and legal precedent that Administrator Browner set is the path that now 

controls. For EPA to reject its previous reading of § 8002(n)(8) and agree with Fortuna would be 

arbitrary. Therefore, contrary to what the Fortuna analysis, and what its sponsors and supporters 

also contend, i.e., that it is illegal for EPA to consider stigma, the very opposite is true. In short, 

it would be illegal if EPA fails to consider stigma. See, also Section B, below, which rebuts a 

similar argument presented in comments of the Joint Advocates.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0199-8

Organization1:Portland Cement Association (PCA)

Commenter1:Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3 2.2 2.1.3

Comment Excerpt Text:

B. Comments submitted to the docket present erroneous legal arguments regarding the Bevill 

factors and their relevancy to EPA’s final decision in this rulemaking. In comments submitted by 

Joint Advocates (EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources 

Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and 
526

Physicians for Social Responsibility) the following claims have been made: “While the Bevill 

factors arguably require EPA at least to consider stigma, the Bevill factors do not govern EPA’s 

final decision on its proposed rule,” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPAHQ-RCRA-2009-0640-10495.1 at 122), and that, “[e]ven if the stigma concerns raised by 

industry were legitimate . . . they would not provide a valid basis for declining to regulate coal 

ash under RCRA Subtitle C.” Id. The Joint Advocates further assert, as Fortuna did in his 

analysis: “The D.C. Circuit’s decision in Hazardous Waste Treatment Council v. U.S.E.P.A. is 

directly on point.” EPA-HQ-RCRA-2011-0392-0119 at 123 (previously EPA-HQ-RCRA-2009-

0640-10495.1 at 123). PCA disagrees.

The above-quoted claims present the Joint Advocates’ legal assertions relating to the scope and 

manner of EPA’s rulemaking authority under the Bevill Amendment. As such, if these assertions 

are correct, they would control whether, when, and how, the issue of stigma and, in particular, 

the presentations of factual examples of stigma, can be considered by EPA in the course of this 

rulemaking. Under the Joint Advocates’ theory, industry’s factual presentations of examples of 

stigma would have no relevancy to EPA’s decision to adopt the subtitle C option, because “the 

Bevill factors do not govern EPA’s final decision on its proposed rule,” EPA-HQ-RCRA-2011-

0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 122). While PCA 

disagrees with the Joint Advocates, if it is assumed they are correct for sake of argument, it must 

also be assumed that the Joint Advocates would have presented this legal argument at the 

beginning of their comments addressing stigma, because the existence of such clear-cut legal 

restrictions on EPA’s authority would supersede EPA’s consideration of stigma and other 

matters of fact and would have avoided any need for EPA, or the Joint Advocates, to address 

stigma at all. Clearly that would be the logical and most expedient thing to do. Thus, if HWTC 

applies and is as “directly on point” as they claim, the Joint Advocates would only have needed a 

few paragraphs, or perhaps only a footnote, to dispose of the stigma issue and EPA’s 

consideration of stigma.

The Joint Advocates did not present their legal argument upfront, however. In fact, their legal 

arguments do not even begin until page 122 of their comments, i.e., 11 pages into their 

comments’ discussion of stigma.

Moreover, the Joint Advocates discussion of stigma in their comments was not limited to just a 

few paragraphs, or a footnote. Rather, the Joint Advocates’ initial, as well as their primary, focus 

on stigma deals with matters involving facts. Beginning on page 111 of their comments, and 

ending on page 153, they present a lengthy dissertation on why industry’s claims are, among 

things, “speculative,” EPA-HQ-RCRA-2011-0392-0119 at 114 (previously EPA-HQ-RCRA2009-0640-10495.1 at 114), and amount to nothing more than industry’s presentation of 

“alarmist stigma arguments” that should not be given credence. EPA-HQ-RCRA-2011-0392-

0119 at 127 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 127).

PCA believes it is significant that the Joint Advocates felt it was necessary to devote more than 

41 pages of their comments to the issue of stigma, when, according to their legal theory, virtually 

all of that discussion should have been superfluous. It is also significant that the Joint Advocates 

felt the need to commission and pay Fortuna to prepare his stigma report, which they appended 

to their comments as Appendix N. Clearly, the Joint Advocates’ actions speak much louder than 
527

their words. Clearly too, the Joint Advocates demonstrate they have no confidence in the merits 

and correctness of their legal argument. As we explain below, they have good reason.

Earlier in these NODA comments we demonstrated that the DC Circuit’s decision in HWTC is 

neither on point nor relevant to this rulemaking. PCA does not feel it is necessary to repeat that 

discussion here and we therefore refer EPA back to pages 9-11 of these NODA comments, supra.

However, PCA will address here another legal argument that was also raised in the Joint 

Advocates’ comments, which is based on their flawed interpretation of the Bevill Amendment 

and its interplay with 42 U.S.C. § 6921. According to the Joint Advocates:

While EPA must determine whether to promulgate regulations based on consideration of the 

Bevill factors, once it has made the decision to regulate, the ordinary listing factors apply. This 

makes sense. Once EPA has found that regulation of coal ash is warranted, it would defeat 

RCRA’s overarching purpose to regulate coal ash less protectively than the statute and 

implementing regulations require. Because none of the relevant provisions of the Bevill 

Amendment requires EPA to list coal combustion waste pursuant to the Bevill study factors, 

EPA must make a final listing decision based on the regulatory listing criteria, which do not 

include stigma or even encouragement of reuse as a factor.

EPA-HQ-RCRA-2011-0392-0119 at 124 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 

124).

Based on the Joint Advocates’ theory, five out of the eight individual Bevill factors would be 

rendered nugatory and, as a result, EPA’s consideration of those factors would be superfluous.

- Factor 1: “the source and volumes of such materials generated each year;”

- Factor 5: “alternatives to current disposal;”

- Factor 6: “the cost of such alternatives;”

- Factor 7: “the impact of those alternatives on the use of coal and other natural resources;”

- Factor 8: “the current and potential utilization of such materials.”

According to the Joint Advocates’ statutory analysis, therefore, while acknowledging the 

obvious fact that the Bevill Amendment directs EPA to analyze such factors, they essentially 

argue that none of these five factors is relevant to EPA’s regulatory decision, because “the Bevill 

factors do not govern EPA’s final decision on its proposed rule.” EPA-HQ-RCRA-2011-0392-

0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 at 122).

In other words, the Joint Advocates argue that the Bevill Amendment imposed what amounts to 

an “all-or-nothing” scheme for regulating Bevill wastes. Under this theory, if CCRs need to be 

regulated, they must be regulated under subtitle C, or they cannot be regulated at all. Therefore, 

according to their theory, if, after considering the Bevill factors, EPA determines that CCRs 

should not be regulated under subtitle C, EPA would be prohibited from regulating CCRs under 

RCRA subtitle D, because “the Bevill factors do not govern EPA’s final decision on its proposed 

rule.” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-10495.1 

at 122).
528

To put this into perspective, under the Joint Advocates’ theory, if EPA determines that the 

unregulated disposal of CCRs poses a potential danger to human health and the environment 

(Bevill factor 3), but also determines that CCRs should not be regulated under subtitle C, 

because doing so would reduce current and potential future reuse and recycling of CCRs (Bevill 

factors 7 and 8) and increase landfill disposal, EPA could not regulate CCRs under subtitle D, 

even if the risk to public health and the environment could be appropriately addressed under 

subtitle D, and the amount of CCRs being disposed of in landfills would be significantly 

decreased. The Joint Advocates’ “all-or-nothing” construction of the statute is nonsensical. It 

would be extremely short-sighted, and arbitrary, for EPA to adopt the Joint Advocates’ “all-ornothing” theory.

At a minimum, if the Joint Advocates’ statutory construction were adopted by EPA, the 

Agency’s analysis of at least five of the eight Bevill factors would be rendered effectively 

meaningless, because regardless of what information were developed under those factors, the 

information would have no bearing on EPA’s final regulatory decision. The Joint Advocates’ 

construction ignores a long line of Supreme Court decisions. As the Supreme Court opined in 

Duncan v. Walker, 533 U. S. 167, 174 (2001), for example: “It is 'cardinal principle of statutory 

construction’ that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, 

no clause, sentence, or word shall be superfluous, void, or insignificant." See, also United States 

v. Menasche, 348 U. S. 528, 538-539 (1955) (“It is our duty to give effect, if possible, to every 

clause and word of a statute [citation omitted] rather than to emasculate an entire section."); 

Montclair v. Ramsdell, 107 U. S. 147, 152 (1883) ("It is the duty of the court to give effect, if 

possible, to every clause and word of a statute, avoiding, if it may be, any construction which 

implies that the legislature was ignorant of the meaning of the language it employed.”).

The 2000 Bevill determination that Administrator Browner issued makes it quite clear that EPA 

is well aware of this basic canon of statutory construction. It is also abundantly clear from the 

2000 determination that the Agency has rejected the Joint Advocates’ “all-or-nothing” reading of 

the statute. Below we quote a number of statements from Administrator Browner’s 2000 

determination that speaks directly to the statutory construction that the Joint Advocates have 

advanced in their comments. Her statements support PCA’s reading of the statute and make it 

abundantly clear that the Joint Advocates’ interpretation of the statutory is wrong:

"Today’s decision was, in the Agency’s view, a difficult one, given the many competing 

considerations discussed throughout today’s notice. After considering all of the factors specified 

in RCRA section 8002(n), we have decided as discussed further below, that the decisive factors 

are the trends in present disposal and utilization practices (section 8002 (n)(2)), the current and 

potential utilization of the wastes (Section 8002 (n)(8), and the admonition against duplication of 

efforts by other federal and state agencies."

65 Fed. Reg. at 32215.

"We believe, however, for the reasons described below, the better approach at this time to 

ensuring adequate management of FFC wastes is to develop national regulations under subtitle D 

rather than subtitle C. EPA has reached this conclusion in large part based on consideration of 
529

“present disposal and utilization practices.” RCRA § 8002(n)."

65 Fed. Reg. at 32216.

EPA’s 2000 determination further makes clear that, in selecting which subtitle of RCRA CCRs 

should be regulated under, the factor of stigma does indeed provide a valid basis for EPA to 

decline to regulate CCRs under RCRA subtitle C. The following statement from Administrator 

Browner’s 2000 determination demonstrates this clearly, and unequivocally:

"We also see a potential downside to pursuing a subtitle C approach. Section 8002(n)(8) directs 

us to consider, among other factors, “the current and potential utilization of such materials.’’ 

Industry commenters have indicated that they believe subjecting any coal combustion wastes to a 

subtitle C regime would place a significant stigma on these wastes, the most important effect 

being that it would adversely impact beneficial reuse. As we understand it, the concern is that, 

even though beneficially reused waste would not be hazardous under the contemplated 

subtitle C approach, the link to subtitle C would nonetheless tend to discourage purchase 

and re-use of the waste. We do not wish to place any unnecessary barriers on the beneficial 

uses of these wastes, because they conserve natural resources, reduce disposal costs and 

reduce the total amount of waste destined for disposal. [Emphasis supplied] States and 

industry have also expressed concern that regulation under subtitle C could cause a halt in the 

use of coal combustion wastes to reclaim abandoned and active mine sites. We recognize that 

when done properly, minefilling can lead to substantial environmental benefits. EPA believes the 

contingent management scheme we discussed should diminish any stigma that might be 

associated with the subtitle C link. Nonetheless, we acknowledge the possibility that the 

approach could have unintended consequences. We would be particularly concerned about any 

adverse effect on the beneficial re-use market for these wastes because more than 23 percent 

(approximately 28 million tons) of the total coal combustion waste generated each year is 

beneficially reused and an additional eight percent (nine million tons) is used for minefilling. 

EPA believes that such reuse when performed properly, is by far the environmentally preferable 

destination for these wastes, including when minefilled. Normally, concerns about stigma are 

not a deciding factor in EPA's decisions under RCRA, given the central concern under the 

statute for protection of human health and the environment. However, given our 

conclusion that the subtitle D approach here should be fully effective in protecting human 

health and the environment, and given the large and salutary role that beneficial reuse 

plays for this waste, concern over stigma is a factor supporting our decision today that 

subtitle C regulation is unwarranted in light of our decision to pursue a subtitle D 

approach. [Emphasis supplied]

Additionally, in a 1993 regulatory determination, EPA previously addressed large volume coal 

combustion wastes generated at electric utility and independent power producing facilities that 

manage the wastes separately from certain other low volume and uniquely associated coal 

combustion wastes (see 58 FR 42466; August 9, 1993). Our 1993 regulatory determination 

maintained the exemption of these large volume coal combustion wastes from being regulated as 

hazardous wastes when managed separately from other wastes (e.g., in monofills). We intend 

that the national subtitle D regulations we develop for the coal combustion wastes subject to 

today’s regulatory determination will also be applicable to the wastes covered in the 1993 
530

regulatory determination for the reasons listed below, so that all coal combustion wastes are 

consistently regulated for placement in landfills, surface impoundments, and minefills.

- The co-managed coal combustion wastes that we studied extensively in making today’s 

regulatory determination derive their characteristics largely from these large-volume wastes and 

not from the other wastes that are co-managed with them.

- We believe that the risks posed by the co-managed coal combustion wastes result principally 

from the large-volume wastes.

- These large-volume coal combustion wastes, account for over 20% of coal combustion wastes.

As we proceed with regulation development, we will also take enforcement action under RCRA 

section 7003 when we identify cases of imminent and substantial endangerment. We will also 

use Superfund remedial and emergency response authorities under the Comprehensive 

Environmental Response Compensation and Liabilities Act (CERCLA), as appropriate, to 

address damages that result in risk to human health and the environment.

However, as stated above, this decision was a difficult one and EPA believes that, absent our 

conclusions regarding the current trends in management of this waste, the waste might present 

sufficient potential threat to human health and the environment to justify subtitle C regulation. 

There are several factors that might cause us to rethink our current determination. First, and 

perhaps most importantly, if current trends toward protective management do not continue, EPA 

may well determine that subtitle C regulation is warranted for this waste. As we have stated, we 

do not believe the current gaps in the basic controls are acceptable, and our determination that 

subtitle C regulation is not warranted is premised to a large extent on our conclusion that subtitle 

D regulation will be sufficient to close these gaps. If this conclusion turns out not to be 

warranted, we would be inclined to re-examine our current decision."

65 Fed. Reg. at 32217-18.

In short, the following two conclusions regarding the applicability and application of the Bevill 

Amendment must be drawn from Administrator Browner’s 2000 determination. First, that the 

Bevill factors apply to the entirety of EPA’s regulatory decision regarding CCRs and not just to 

EPA’s determination whether CCRs should be regulated. Therefore, contrary to what the Joint 

Advocates’ comments contend, EPA’s application of the Bevill factors in this rulemaking should

not be limited solely to the Agency’s decision whether to regulate to CCRs but also extends to 

EPA’s determination of how CCRs are listed, i.e., whether CCRs should be regulated under 

RCRA subtitle C or subtitle D. [Footnote 22: The Joint Advocates ignore the statutory 

construction the Agency adopted under former Administrator Browner. They instead assert, 

albeit erroneously: “Even if the stigma concerns raised by industry were legitimate – which they 

are not – they would not provide a valid basis for declining to regulate coal ash under RCRA 

Subtitle C.” EPA-HQ-RCRA-2011-0392-0119 at 122 (previously EPA-HQ-RCRA-2009-0640-

10495.1 at 122).] Second, Administrator Browner’s 2000 determination also made abundantly 

clear that the factor of stigma can indeed influence EPA’s decision whether to CCRs should be 

regulated under RCRA subtitle C or subtitle D. Based on Administrator Browner’s 2000 
531

determination, if regulating CCRs under subtitle C could, in fact, cause a stigma, the existence of 

that possibility will suffice to provide EPA with a valid basis to decline to regulate CCRs under 

subtitle C.

Accordingly, and contrary to the comments submitted by the Joint Advocates, the examples of 

stigma that industry provides bear directly upon EPA’s decision whether it would be better to 

regulate CCRs under RCRA subtitle D, i.e., to decline to regulate them under subtitle C. 

Although PCA provided a number of examples of stigma in its original comments, because of 

the comments submitted by the Joint Advocates, and by Fortuna, we feel a need to submit 

additional examples of stigma that we learned of since submitting our original set of comments.

As further rebuttal to the comments of the Joint Advocates and also Fortuna, PCA provides a 

detailed discussion of additional examples of stigma in Section E of these NODA comments, 

below.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0248-3

Organization1:Headwaters Resources, Inc.

Commenter1:William Gehrmann III

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.2.2 2.1.3 10.2.2

Comment Excerpt Text:

I. EPA Is Required to Consider the Beneficial Use Data and Information Under the Bevill 

Amendment 

As the Utility Solid Waste Activities Group ("USWAG") explained in its comments on the 

proposed rule, [Footnote 1: Headwaters incorporates by reference those portions of USWAG's 

comments regarding the Bevill Amendment requirements and process, found at pages 27-41. 

Comments of The Utility Solid Waste Activities Group, The Edison Electric Institute, The

American Public Power Association, and The National Rural Electric Cooperative Association 

on Hazardous and Solid Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule, Docket 

No. EPA-HQ-RCRA-2009-0640, at 27-41 (Nov. 19, 2010), available at www.regulations.gov.] 

EPA does not have authority to undertake this rulemaking because EPA properly decided to 

regulate CCRs under Subtitle D, rather than Subtitle C, in its 2000 determination--a 

determination which EPA cannot now reverse. Headwaters agrees with this point. Further, as 

USWAG also stated and as we also agree, even if we assume that somehow EPA could now 

legally reverse its final 2000 regulatory determination for CCRs, EPA could only do that if it 

were to follow the Bevill amendment procedures set forth in the statute for regulating disposed 

CCRs as hazardous waste. See 42 U.S.C. §§ 6921(b)(3)(A) and (C), and 6982(n). As part of 
532

these procedures, EPA must "conduct a detailed and comprehensive study and submit a report on 

the adverse effects on human health and the environment, if any, of the disposal and utilization 

of fly ash waste, bottom ash waste, slag waste, flue gas emission control waste, and other 

byproduct materials generated primarily from the combustion of coal or other fossil fuels." 42 

U.S.C. § 6982(n). This study must include a detailed analysis and consideration of a number of 

factors: 

(1) "the source and volumes of such material generated per year"; 

(2) "present disposal and utilization practices"; 

(3) "potential danger, if any, to human health and the environment from the disposal and reuse of 

such materials"; 

(4) "documented cases in which danger to human health or the environment from surface runoff 

or leachate has been proved"; 

(5) "alternatives to current disposal methods"; 

(6) "the costs of such alternatives"; 

(7) "the impact of those alternatives on the use of coal and other natural resources"; and 

(8) "the current and potential utilization of such materials." 

42 U.S.C. § 6982(n). Factors (2) ("present disposal and utilization practices") and (8) ("the 

current and potential utilization of such materials") specifically relate to beneficial use of CCRs. 

Thus, under the Bevill Amendment, EPA is required to consider data and other information 

relating to beneficial use of CCRs in any rulemaking effort that could result in greater regulation 

of CCRs. . 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Section 2.3 - Bevill Determination for CCRs Generated by Non-Electric Utilities (35165-

35166)

Total Number of Submissions: 1

Total Number of Comments: 1

Comment Number: EPA-HQ-RCRA-2009-0640-09631-2

Organization1:Porter Wright Morris & Arthur LLP

Commenter1:Christopher R. Schaff

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA's proposed rulemaking appears motivated by the "catastrophic releases such as occurred at 

the Tennessee Valley Authority's (TVA's) Kingston, Tennessee facility." (75 FR at 35132). EPA 

cites no other "catastrophic release" from any investor-owned electric generation facility, yet 
533

EPA proposes to limit the scope of its proposed rule to CCRs from electric utilities. The rationale 

for limiting the regulation of CCRs to electric utilities is opaque at best, or (more likely) wholly 

lacking in the June 21,2010 Notice of Proposed Rulemaking. We would suggest that there is no 

rationale basis for limiting the proposed rule to electric utility CCRs. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units VI 

that addresses the applicability of the rule. 

Section 2.3.1 - EPA solicits info/data on CCRs generated by other industries (e.g., nonutility boilers, combined heat and power plants), such as volumes generated, characteristics 

of CCRs, co-management with other wastes generated (35166, 35222)

Total Number of Submissions: 16

Total Number of Comments: 21

Comment Number: EPA-HQ-RCRA-2009-0640-06260-31

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth does not have specific information on non-utility ash wastes. Many of these 

companies and industries transport their ash to MSW landfills, where they are co-mingled.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06409-1

Organization1:State of Alaska

Commenter1: Kristin J. Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1

Comment Excerpt Text:

Within the preamble to the proposed rule, the EPA requests information on CCRs that are 

generated by non-utility industries including volumes, characteristics, and management practices. 

The information in this section is intended to provide that information as well as a general 

summary of CCRs in Alaska. 
534

Coal Ash Management

In Alaska, the use of coal for production of electricity is limited to six power plants located 

within the Interior region of the state, in and around the city of Fairbanks. The coal burned by all 

six power plants comes from a single source, the Usibelli Coal Mine, located approximately 90 

miles south of Fairbanks near the town of Healy. In 2009, the six Interior Alaska power plants 

burned a combined total of 976,000 tons of Usibelli coal.

Four of the six power plants in Interior Alaska are non-utilities that will be exempt from the 

proposed rule because those plants do not sell electricity and/or heat to the public. These four 

include the power plants at Fort Wainwright Army Post, Eielson Air Force Base, Clear Air Force 

Station, and the University of Alaska Fairbanks (UAF). The two power plants that sell power to 

the public and will be subject to the proposed rule are the Golden Valley Electric Association 

(GVEA) power plant in Healy and the Aurora Energy Services (AES) power plant in Fairbanks. 

The GVEA power plant produces electricity that is sold to GVEA customers; the AES power 

plant is a combined heat and power plant that sells electricity to GVEA and steam heat to 

municipal, business, and residential properties within the city of Fairbanks.

Together, the six power plants generate about 100,000 tons of CCRs each year. Fifty-five percent 

of that amount is generated by the four non-utility power plants. The CCRs from the three 

military power plants are disposed in ADEC-permitted landfills on military property and the 

CCRs from the UAF power plant are stored by local businesses for use or sale as fill material 

within the Fairbanks area. The GVEA and AEC power plants generate 45% of the CCRs 

produced each year. The CCRs from the GVEA power plant are disposed in an ADEC-permitted 

landfill within the boundaries of the Usibelli Coal Mine; CCRs from the AES power plant are 

stored by local businesses for use or sale as fill material within the Fairbanks area.

The ADEC has access to analytical data from CCRs provided to us by power plant operators, 

consultants, and the USGS. Those data span about 15 years and include both total metals and 

Toxicity Characteristic Leaching Procedure (TCLP) results. With regard to hazardous waste 

characterization, although a reported total metals concentration occasionally exceeds the inferred 

maximum of 20 times the TCLP limit, TCLP results for Alaskan CCRs are routinely nondetectable or many orders of magnitude below the corresponding TCLP limit. Based on the 

available data, the ADEC regulates CCRs as an inert waste, defined in state regulation as a "solid 

waste that has a low potential to pollute air or water, and that does not normally attract wildlife."

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-38

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government
535

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

There is a solicitation for information and data on CCR generated by non-utilities and mixes with 

other wastes at the end of the section entitled “F. EPA is not proposing to revise the Bevill 

Determination for CCR generated by non-utilities”. Wisconsin has several papermill waste 

landfills and some of other industries that co-dispose of coal or mixed-fuel wastes with papermill 

sludge, yard waste, bark, process rejects such as knots, etc. The request involves considerable 

effort to collect the information about specific generators, waste volumes, characteristics, and 

other unspecified information. 

Since EPA has already decided that the proposed rules will not apply to non-utility CCR 

disposal, we do not see the value of assembling this information for comment on this rule. 

However, this is an important issue for non-MSW landfill regulation in Wisconsin, and we 

request that EPA solicit our help and information regarding this issue when they return to the 

question of regulation of coal ash and/or other wastes generated by the non-MSW, non-utility 

generators. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06815-12

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CCR are generated at a number of non-public utility sources in Michigan, including industrial 

sources such as paper mills, sugar beet processors, and various manufacturing plants, as well as 

power plants at universities. In some instances these CCR are disposed of in either municipal 

solid waste landfills or industrial landfills permitted and licensed under the provisions of Part 

115.

Approximately 135,000 tons per year of CCR are generated by non-utility industries and sent to 

Michigan landfills each year. Of this amount, approximately 28,000 tons are co-disposed in 

industrial waste landfills utilized by pulp and paper mills, and the remainder is disposed of in 

municipal solid waste landfills. 

Response: The Agency acknowledges and appreciates the comment. 
536

Comment Number: EPA-HQ-RCRA-2009-0640-06880-1

Organization1:Eastman Chemical Company (Eastman)

Commenter1: Keith Harris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 10.4.3

Comment Excerpt Text:

Eastman is not an electric utility or independent power producer and would not be subject to this 

proposed rule. Eastman generates coal combustion residuals (CCR) marketed for beneficial use 

that are already suffering stigma resulting from the mere proposal that management under RCRA 

Subtitle C would be required for CCR. Eastman also disposes of CCR in a landfill that is subject 

to, since 1984 has been permitted under, and is in compliance with, Tennessee Rules for Solid 

Waste Processing and Disposal (Rule Chapter 1200-1-7). Eastman strongly supports regulation 

of CCR under the proposed Subtitle D option. Additional details as well as comments in 

response to EPA's requests in the proposed rule are provided in the enclosure. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06880-2

Organization1:Eastman Chemical Company (Eastman)

Commenter1: Keith Harris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3

Comment Excerpt Text:

Eastman is not an electric utility or independent power producer and would not be subject to the 

requirements of this rule. Eastman operates coal-fired, stoker-fed solid fuel boilers that produce 

cinders. These cinders are suitable for use by the building material manufacturing industry in the 

manufacture of cinder blocks. Eastman has had a purchase agreement in place for more than 

thirty (30) years with a regional building material manufacturer for the purchase of our boiler

cinders for use in making cinder blocks. Effective November 16, 2010, this building material 

manufacturer has terminated its purchase agreement for Eastman's cinders. The causes given by 

this former Eastman business partner for terminating the agreement included the manufacturer's 

concern for the marketability of its products when its feed stock is merely proposed to be subject 

to RCRA hazardous waste regulations and the costs that are reasonably expected to result from 

defending against lawsuits, whether substantiated or frivolous, that would be brought in the wake 

of such regulation. The cost to Eastman in lost income, increased transportation to haul cinders 

to the landfill rather than having them hauled by the purchaser, and consumed landfill capacity, 
537

of this beneficial use of approximately 25,000 tons of its boiler cinders will potentially reach a 

half million dollars per year. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07489-11

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. A hazardous classification is contrary to national energy and conservation goals.

Many institutional and industrial facilities utilize cogeneration (also referred to as combined heat 

and power or “CHP”) which is one of the most efficient ways to use coal. Electricity generated at 

a CHP facility is generated at twice the efficiency of a traditional condensing turbine utility 

plant. As a result, CHP is the most efficient use of energy resources, capable of thermal 

efficiencies in excess of 60% versus the 30-40% more typically found in electrical generating 

units (EGU). EPA includes utility-sector and IPP CHP facilities for the same regulatory 

treatment and with the same time frames as non-CHP facilities. [Footnote 26: 75 FR 35165-

36166.] Subtitle C listing will increase risks and discourage CHP development. Coal will 

necessarily remain part of the nation's fuel portfolio for the foreseeable future. As a result, 

efficient use of coal should not be discouraged.

Congress adopted RCRA to establish nationwide practices for resource conservation and 

recovery of value from those resources. Congress directs the federal government in every 

energy-related law to conserve energy and exploit alternative energy sources. EPA and industry 

have worked together to develop environmentally safe beneficial use options for CCBs. Subtitle 

C listing will end those efforts and the recovery of the energy value in CCBs

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07489-17

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.11
538

Comment Excerpt Text:

(4) Permitted Emissions from Vents: Because no pollution control device can approach a 

theoretical 100% effectiveness, all utility and industrial boilers have permitted emissions from 

their stacks and other vents. For a 500 MW coal-fired subcritical boiler burning eastern 

bituminous coal, a 99.99% efficient Fabric Filter would allow over 28,000 pounds of CCBs to be 

emitted out its Title V permitted stack (assumes 9,000 Btu/kwh heat rate; 12,500 Btu/lb coal with 

10% ash; 90% capacity factor). This does not meet the “low-volume” requirement of §261.4(c), 

yet represents a virtually uncontrollable release to the environment of RCRA hazardous material. 

Further, for a CCB sample collected in the environment, it would be impossible to distinguish 

between CCB generated from an EGU versus CCB generated by an industrial boiler not subject 

to this rule. EPA has failed to consider how institutional and industrial facilities will respond to 

the potential liability introduced under this scenario in its RIA

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07489-28

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. Although EPA states that the rule applies only to utilities and IPPs, the institutional and 

industrial sectors will be directly or indirectly regulated under the rule as proposed.

The proposed rule expressly regulates CCBs from the utility sector, which overwhelmingly 

produces the largest annual proportion of CCBs. Although EPA states that the Proposal does not 

regulate sectors other than electric utilities and independent power producers, in fact, the rule 

will directly or indirectly regulate ash produced by coal-fired facilities in the institutional and 

industrial sectors. This is due to how the Proposal defines some terms and its applicability, and 

also due to the overlapping effect of other laws.

As drafted, the proposed Subtitle D rule will regulate CCRs from non-utility facilities. 

The proposed Subtitle D provisions do not restrict applicability of the rule to utility and IPP CCB 

producers. Rather, the provisions cover "owners or operators of CCR landfills and CCR surface 

impoundments." Proposed §257.40, 75 FR 35240. The applicability of those terms is not 

restricted to utilities and IPPs. The proposed Subtitle D definition of “coal combustion residuals” 

covers all ash, regardless of the type of facility combusting coal:

Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas 

desulfurization materials. CCRs are also known as coal combustion wastes (CCWs) and fossil 

fuel combustion (FFC) wastes.

Proposed § 257.40 (b); 75 FR 35240. In addition, proposed Subpart D provisions define the 
539

scope and purpose of the regulation to include all CCR landfills and impoundments. See, e.g., 

proposed §257.40(a); 75 FR 35240 (defining applicability of disposal standards to CCR landfills 

and impoundments generally); §257.2; 75 FR 35239 (defining “CCR landfill” and “CCR surface 

impoundment” without reference to the sector origin of CCRs accepted at the site). These 

provisions do not exclude facilities that manage CCRs produced by non-utility sources. 

Proposed Subtitle C and D rules will result in equivalent treatment for all CCRs by states. 

Any proposal to manage utility CCB will result in states regulation all sources of CCB for the 

simple reason that states that presently regulate CCBs regulate them from all coal combustion 

sources, not only from utility sources. It would be impractical and states are not likely to create 

separate regulatory pathways and require segregated accounting for utility and 

industrial/institutional CCBs. This would double their administrative burden with no 

environmental benefit. Institutional and industrial producers of CCBs would now likely become 

large quantity generators of hazardous waste and be burdened with many additional regulatory 

requirements and costs with essentially no environmental benefits produced

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08218-52

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Department collects volume and other information from the other non-utility CCR 

generators in Maryland. This information is provided on our website at 

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts 

/Pages/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx. Most dispose of the material with 

their municipal solid waste, although one generator uses the material for coal mine reclamation. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08244-21

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
540

Comment Excerpt Text:

3. EPA’s Decision To Treat EGU-Generated CCRs Differently From Industrial CCRs Is 

Arbitrary And Demonstrates That Its Risk Concerns Are Overstated

In EPA’s draft 1998 CCR risk assessment, the Agency considered the CCRs produced by coalfired non-utility boilers to be so similar to CCRs from utility boilers that the same samples and 

modeling data were used to evaluate the risk from industrial CCRs as were used to assess utility 

CCRs. This is sensible as industrial boilers are generally the same as utility boilers, only smaller. 

In 1998, EPA found similar low level risks for CCRs from non-utility boilers as for utility plants, 

particularly with respect to arsenic [Footnote 200: EPA, Ground-Water Pathway Human Health 

Risk Assessment, Sec. 5.5.4 (1998) (Revised Draft Final).]. Based on this prior assessment, it is 

surprising that EPA asserts in the Proposed Rule that it can ignore non-utility wastes under 

Subtitle C, even if it decides to subject utility CCRs to such requirements. This decision is 

arbitrary because, as EPA determined in 1998, the CCRs produced in a coal-fired industrial 

boiler are substantially similar to those produced in a utility boiler for waste management 

purposes. In fact, the primary difference between utility and industrial coal-fired boilers is that 

industrial boilers typically operate at lower combustion temperatures, and as a result more of the 

metals in the coal being burned remains in the fly ash. If anything, this difference confirms that 

EPA erred in not including industrial boilers within scope of the Proposed Rule. The only 

justifications offered by EPA for these distinctions are the fact that industrial boiler CCRs are 

generated in lower volumes and are more likely to be comingled with other types of wastes 

[Footnote 201: 75 Fed. Reg. at 35,166.]. Neither of these justifications are determinative. If 

CCRs were truly hazardous enough to require listing under Subtitle C, then non-utility boiler 

wastes would pose substantially the same risks from a hazardous waste perspective as utility 

CCRs. Moreover, depending on the nature of the wastes that industrial CCRs are comingled 

with, the disposal of those combined wastes could actually increase leaching relative to monofill 

utility wastes; for example, if the non-CCR industrial waste reduced pH in the disposal site. 

EPA’s failure to include non-utility CCRs in its proposal validates what is implicit elsewhere in 

the record – that the Agency’s concerns about utility-generated CCRs are not driven by their 

potential hazard, but some other factor that is not directly relevant to the core differentiation 

between a Subtitle C and Subtitle D approach (i.e., whether a waste is hazardous).

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08253-6

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

6 CCR's Generated by Non-Utility Industries: 

We have no specific information on this issue, however one unintended consequence of 
541

regulating CCRs from utilities as a RCRA C "Special Waste" is that local governmental 

authorities may elect to regulate all CCRs, regardless of the source, in this manner for 

consistency. We also believe that the stigma concern associated with electric utility CCR's would 

have a similar adverse impact on beneficial use of non-utility CCRs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08269-3

Organization1:Horsehead Corportion

Commenter1: Patrick T. Currier

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.1.1

Comment Excerpt Text:

A. HORSEHEAD CORPORATION. 

Horsehead, a wholly owned subsidiary of Horsehead Holding Corp., is the world’s largest 

recycler of zinc and the largest producer of zinc products including Prime Western grade zinc 

metal (i.e., 98.5% Zn) and high purity zinc oxide in the U.S. Horsehead is also the world’s 

leading recycler of electric arc furnace dust (“EAFD”), a zinc-bearing by-product generated by 

U.S. mini-mill steel producers that is regulated pursuant to the Resource Conservation and 

Recovery Act (“RCRA”). Horsehead converts EAFD into useable products by extracting the 

contained zinc to produce a crude zinc oxide for use as a feed source for our zinc products 

business. Horsehead’s recycling efforts lessen the need for virgin zinc, thus promoting resource 

conservation and sustainability. 

Horsehead’s recycling capability provides steel producers an effective and efficient alternative to 

hazardous waste landfill disposal and other expensive, less environmentally-friendly disposal 

methods. This is an important environmental service, particularly given that hazardous waste 

landfill capacity is limited.4 Indeed, to date Horsehead has recycled over 6.5 million tons of 

hazardous EAFD that otherwise would have taken up valuable landfill space. 

Moreover, Horsehead serves its end markets including galvanizers, tire producers and 

pharmaceutical manufacturers with zinc products produced from 100% recycled materials, thus 

further promoting the principles of sustainable development. Horsehead’s commercially-proven 

high temperature metals recovery process has been designated by EPA as a “Best Demonstrated 

Available Technology” for the processing of EAFD. 

B. HORSEHEAD’S MONACA FACILITY AND POWER PLANT. 

Horsehead’s Monaca facility operates as the country’s largest zinc smelter. Located 28 miles 

northwest of Pittsburgh, Pennsylvania, this electrothermic zinc smelter is the result of a company 

experiment conducted in the 1920s to produce zinc oxide. Since that time, the Beaver County 
542

operation has been expanded and modernized. Recognized as the world’s largest user of recycled 

zinc-bearing materials in its manufacturing process, Horsehead’s Monaca plant produces 

primarily zinc metal and zinc oxide. The facility employs approximately 650 people. 

Horsehead generates substantially all of its electricity requirements for its Monaca facility from 

the George F. Weaton station, an on-site 110-megawatt power plant, which it owns and operates. 

Specifically, Horsehead operates two pulverized coal-fired 600 MMBtu/hr boilers at the Monaca 

facility. The boilers provide electricity to power seven electrothermic furnaces, with each using 

approximately 8.5 megawatts of electric power. Each boiler serves one generator with a 

nameplate capacity of 60 megawatts. However, like many similarly-situated manufacturing 

facilities with on-site generation, the electricity that Horsehead generates is mainly for its own 

use, but any excess may be sold in the wholesale market. 

As described in greater detail below, the Industrial Residuals generated by the Weaton Plant are 

maintained in strict accordance with the Pennsylvania Department of Environmental Protection’s 

Residual Waste Program.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-1

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.2 3.1.2 7.3.1 7.1.1.2 5.5.1 5.5.2

Comment Excerpt Text:

The Impact To Non-Utilities Of A Subtitle C Determination Of CCRs 

The SBP power plant is not a part of the Electrical Power Sector (Electric Utilities and 

Independent Power Producers) as defined in 75 Fed. Reg. at 35,130 because its primary business 

is to provide electricity and heat for the ore mining and processing operations as opposed to the 

sale of electrical power and heat to the public. Therefore, CCRs produced at this plant are not 

subject to the proposed Rule. However, because of the precedent that will be set by this 

rulemaking and the possibility that EPA may proceed with rulemaking to address CCRs from N 

on-Electric Power Sector power plants at some future date, Cliffs is very interested in EPA's 

CCR waste determination in this rulemaking. 

Except for a portion of the CCRs that are sold for beneficial use, all of the remaining CCRs that 

are produced at SBP are disposed in an engineered landfill, the design of which includes an 

impermeable synthetic liner beneath the CCR pile, an impermeable synthetic cap over each filled 

landfill cell, a leachate collection system to remove stOlmwater that accumulates from within the 

CCR pile on top of the liner, and monitoring wells to monitor the integrity of the landfill. The 

landfill was designed in conformance with Minnesota solid waste regulations. The Minnesota 

Pollution Control Agency approved the design of the landfill and issued a solid waste disposal 
543

system permit for the landfill that includes monitoring and repOliing requirements among other 

conditions. There are other landfills in the state that are similarly designed, permitted, and 

operated by public utilities. Should EPA decide to regulate CCRs as Subtitle C hazardous wastes, 

this would result in a significantly increased pennitting effOli for such landfills, along with 

significantly increased costs of construction, operation, monitoring, and reporting. This would 

result in a much greater burden to the state permitting agency, as well as to the owner and 

operator of the landfill with no environmental benefit being derived. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-1

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Although AF&PA members are not directly regulated by this rulemaking, EPA indicates in the 

preamble that consideration of coal combustion residuals (CCRs) from other entities will likely 

follow decisions made regarding such residuals from electric utilities. According to the Energy 

Information Administration, the pulp and paper industry uses approximately one percent of the 

coal burned in the United States to generate electricity and steam. Virtually all of our facilities 

that generate electricity do so using highly-efficient combined heat and power technology. As a 

result, we are greatly interested in the rulemaking that EPA is undertaking concerning the 

regulatory scheme for CCRs from electric utilities.

Comment Number: EPA-HQ-RCRA-2009-0640-09423-2

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.2

Comment Excerpt Text:

EPA Correctly Excluded Pulp and Paper Mill Coal Combustion Residuals from this Rulemaking

AF&PA supports EPA’s decision not to include coal combustion residuals from the 

manufacturing sector in this rulemaking. The pulp and paper industry’s management of coal ash 

differs somewhat from that of the electric utilities – which uses 95 percent of all coal in the U.S. 
544

Therefore, we think that it makes sense to review our operations before regulating them.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-3

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

At our request, the National Council for Air and Stream Improvement (NCASI), the independent, 

non-profit research institute that focuses on environmental topics of interest to the forest 

products industry, conducted an informal survey of most of the pulp and paper mills known to be 

the largest users of coal in the sector. Their findings confirm several important facts about coal 

use and ash generation in this industry.

o Pulp and Paper Mills manage coal combustion residuals differently than the electric utility 

sector.

- Most of the mills burn a wide variety of fuels in addition to coal. As a result, those mills comanage coal ash with ash generated from other fuels, particularly biomass.

- Of the 27 mills surveyed, only four mills handle their coal ash separately from other ash.

o Pulp and Paper Mill CCR management units differ from those in the electric utility sector

- No mill employs any surface impoundment for permanent storage of ash in wet form.

- Of the 15 mills with wet ash ponds used for temporary storage, nine are known to have ponds 

that are “at grade” (an excavation only) and six have true impoundments in that one of more 

sides are aboveground because of a constructed earthen retaining wall.

o Pulp and Paper Mill CCR management units are significantly smaller than those in the utility 

sector.

- The largest units are 23 to 60 acres in size and hold from 15 to 40 million gallons of wet ash.

- Only one of the impoundments is used solely for coal combustion byproducts.

- In contrast, utility management units are as large as 650 acres, holding hundreds of millions of 

gallons of wet ash.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10681_DC-069-1

Organization1:American Forest & Paper Association (AF&PA)
545

Commenter1:Amy E. Schaffer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.2

Comment Excerpt Text:

The forest products industry accounts for approximately 5 percent of the total U.S. 

manufacturing GOP, putting it on par with the automotive and chemical industries. Industry 

companies produce $200 billion in products annually and employ approximately 900,000 people 

earning $54 billion in annual payroll. The industry is among the top 10 manufacturing sector 

employers in 48 states.

According to the Energy Information Administration, the pulp and paper industry uses about 1 

percent of the coal burned in the United States. We use coal to generate electricity and steam. 

Virtually all our facilities that generate electricity do so using highly-efficient combined heat and 

power technology. We are the largest user of coal after the electric utility sector. As a result, we 

are greatly interested in the rulemaking that EPA is undertaking concerning the regulatory 

scheme for coal combustion byproducts.

AF&PA supports EPA's decision not to include coal combustion byproducts from the 

manufacturing sector in this rulemaking. We believe that our management of coal ash differs 

somewhat from that of the electric utilities. Pulp and paper mills use a wide variety of fuels -- in 

addition to coal. As a result, our mills frequently co-manage coal ash with ash generated from 

other fuels, particularly biomass. We believe that our ash management units are significantly 

smaller than those in the utility sector. Therefore, we think that it makes sense to review our 

operations before regulating them.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11652_K-067-1

Organization1:Tennessee Paper Council (TPC) and American Forest & Paper Association 

(AF&PA)

Commenter1:Richard Holland

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Good morning. My name is Richard Holland. I represent the Tennessee Paper Council and the 

American Forest & Paper Association. The TPC and AF&PA are trade associations of the forest 

products industry, representing pulp, paper, packaging and wood products manufacturers, and 

forest landowners. Our companies make products essential for everyday life from renewable and 

recyclable resources.
546

According to the Energy Information Administration, the pulp and paper industry uses about 1 

percent of the coal burned in the United States. We use coal to generate electricity and steam. 

Virtually all our facilities that generate electricity do so using highly-efficient combined heat and 

power technology. We are the largest user of coal after the electric utility sector. As a result, we 

are greatly interested in the rulemaking that EPA is undertaking concerning the regulatory 

scheme for coal combustion byproducts.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0018-4

Organization1:ALCOA Power Generating, Inc.

Commenter1:Scott Darling

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As stated in the proposed rule, the electric utilities are covered by this rule. ALCOA requests that 

EPA clarify the distinction between industrial and utility, perhaps looking at definitions 

contained within the acid rain section of the Clean Air Act. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-PIT-0025-1

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

One, Alcoa believes that the use of Subtitle C is an approach to regulate CCR's higher than 

warranted. The use of modified TCLP to model and justify the destination of CCR's are 

hazardous, we believe misuses that test method as it does not accurately model the actual 

releases from many aspects, most specially developers out in the midwest. As ours when it 

comes in contact with water becomes alkaline not acidic. The test data from our fly ash surface 

impoundments both open and closed indicate that our ash is nonhazardous. The material has 

exhibited that for the last 20 years, if not more. The data we derived from our groundwater 
547

testing as part of our Electro Facility Investigation and the RFI, public knowledge, our fly ash 

shows no detection of any chemicals of concern in the groundwater. 

Alcoa believes that the EPA has exhaustedly researched the toxicity of CCRs in the past, and has 

at least once affirmed the exclusion, under the Bevill Exclusion from the management of 

hazardous waste, and we encourage you to continue that designation. As such, we really see no 

technical scientific basis for changing that designation now. 

Response: The Agency acknowledges and appreciates the comment. 

Section 2.3.2 - Comments on whether EPA should revise Bevill regulatory determination 

for CCRs generated by non-electric utilities, including support or oppose

Total Number of Submissions: 30

Total Number of Comments: 33

Comment Number: EPA-HQ-RCRA-2009-0640-00358-14

Organization1:Citizens for Clean Power (CCP)

Commenter1: John Austin

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

261.4 Exclusions

Sentence (ii) should be stricken.

(ii) Fly ash, bottom ash, boiler slag, and flue gas emission control wastes generated

primarily from the combustion of coal for the purpose of generating electricity by facilities 

outside of the electric power sector (i.e., not included in NAICS code 221112).

EPA should not exclude facilities outside the electric power sector. Wastes at small <25MW 

generation units at industrial power house operations like Invista, Seaford, Delaware have been 

mismanaged in the same way as larger EGU operations. The wastes are chemically the same and 

should be managed under the same regulations. As proposed it would set up different standards 

for identical wastes based solely on the point of origin or volume produced.

An example of significant contamination at a combined-heat-and-power (CHP) site is:

Invista, Seaford, DE – Unlined landfill and two surface impoundments - Stream station SG-4 

shows 14.9 ug/L south of landfill; Well MW-14D adjacent the unlined South Ash Pond, 2170 

ug/L As 

http://www.docstoc.com/docs/598194/Invista-Seaford-Plant-DuPont/
548

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-00465-4

Organization1:Watauga Watershed Alliance

Commenter1: Gloria Griffith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, both proposals decline to regulate the 3 to 6 million tons of coal ash generated 

annually by non-utilities. 

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

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

Organization1:Savannah River Nuclear Solutions, LLC (SRNS)

Commenter1: Hal W. Morris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7

Comment Excerpt Text:

Comment Number l is on a statement in the Supplementary Information, section A, on page 

35129 of the June 21, 2010 Federal Register that says "CCRs from non-utility boilers burning 

coal are not included within today's proposed rule ." The language for the proposed subtitle C 

section 261 .50 (b)(4) says "[This listing does not apply to coal combustion residuals that are:] 

Generated by facilities outside the electric power sector (i .e ., not included in NAICS code 

22112) ." Similar language is not in the wording of the proposed subpart D section 257.40 (a) 

Applicability, or in any other sections of the proposed subpart D. If the subtitle D option 

proposed in the June 21, 2010 Federal Register is enacted with the language in the proposed rule, 

CCRs from non-utility boilers burning coal will be included, contrary to the stated position of the 

Environmental Protection Agency (EPA) in the preamble . Mr. Alexander Livnat, EPA Office of 

Resource Conservation and Recovery, was contacted by phone on June 22, 2010 to discuss this 

point. Mr. Livnat confirmed that the EPA did intend to exclude CCRs from non-utility boilers 

burning coal from regulation at this time from both the subtitle C and the subtitle D proposed 

rules. SRNS respectfully requests that the EPA revise the language of the proposed section 

257.40 to reflect the wording in the proposed section 261 .50 (b)(4) in order to clearly exclude 

CCRs from non-utility boilers burning coal from regulation.
549

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-05768-2

Organization1:

Commenter1:Richard C. Phelps

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Applicability of the Proposal to Reclassify CCR: 

EPA must include ALL CCR generators above a de minimus amount in this regulation. Both 

power-producers and other industrial coal-burning sources must be included. There are a great 

many large industrial sources including the steel and chemical industries. These must be included 

in the revised regulation of CCR. 

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06040-5

Organization1:Longview Power, LLC

Commenter1: Joseph R. Douglass

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has proposed not to revise the Bevill exclusion for CCR's generated at facilities that are not 

part of the electric power sector and which use coal as the fuel in non-utility boilers, such as 

manufacturing facilities, universities, and hospitals. EPA estimates (page 35166) that these 

facilities generate approximately 3 million tons of CCR/year. If indeed CCR's present 

environmental hazards sufficient to warrant this rulemaking, we must question the proposal to 

regulate CCR's differently depending upon the nature of business conducted by the generator. 

How could EPA possibly justify imposition of a one (1) pound reportable quantity for regulated 

generators under Part 302.4, while disregarding 3 million tons from non-regulated generators? If 

additional rules are required for CCR's, these rules should encompass CCR's from all generators, 

particullarly if they are deemed "hazardous". 
550

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06041-6

Organization1:SKB Environmental, Inc (SKB)

Commenter1: Ryan O'Gara

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Additionally, the proposed regulation does not address non-utility coal combustion byproducts. 

While this exclusion would allow SKB to continue to service the disposal needs of its non-utility 

customers that use coal as fuel, this would cause perception issues with the public, local units of 

government, and neighbors of our Facility. SKB would be forced to explain why it can take the 

same waste types for disposal from universities and other non-utility customers, but the same 

exact waste streams from a utility are hazardous waste and not acceptable for disposal at our 

Facility because it is not permitted as a Subtitle C facility . This could have the unintended 

consequence of prompting the local unit of government to list all CCBs as unacceptable waste in 

our Facility's conditional use permit (CUP), thereby making it unreasonably difficult for nonutility CCB generators in Minnesota to access an appropriate disposal facility.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06314-7

Organization1:Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Industrial CCR is Also Dangerous and Should be Regulated Under Subtitle C. 

EPA states in its 1999 Report to Congress:

Analytical data to broadly characterize non-utility combustion wastes are not available. EPA, 
551

however, believes that non-utility CCW characteristics are similar to those of utility CCWs.

The greater use of stoker technology in the non-utility sector does raise the possibility of 

differences in waste characteristics. Such differences might stem from differences in combustion 

conditions and fuel feed characteristics between stokers and the PC boilers used extensively by 

utilities. The available data, however, do not indicate that these differences are significant for 

the purpose of evaluating risk to human health and the environment .(USEPA, 1999).

Earlier assessments by EPA of the potential harm from CCR disposal was hampered by the 

failure of older leach test methods to characterize the contamination potential of CCRs, and the 

lack of documented damage cases. The limited leach test data that is available for industrial 

CCR, and the known inadequacies of the older test methods means that such should not be used 

to justify exempting industrial CCR from regulation. 

Although EPA cites several of its damage cases as involving industrial CCR (Salem Acres and 

Lemberger landfills) a close examination of available information about them shows that they 

involved disposal of CCR from power plants. However, two of EIP’s damage cases involved 

industrial CCR and both document the toxicity of industrial CCR and support regulating CRR 

from industrial boilers under Subtitle C.

· IEL Landfill, Uniontown Ohio, received about one million tons of ash from industrial boilers in 

the Akron/Canton area that filled about one-third of the landfill. The IEL landfill stands out as 

having the largest number of MCL exceedances of any of the 150 EPA and EIP damage cases, 

with MCLs exceeded for alpha particles, antimony, arsenic, barium, beryllium, cadmium, 

chromium, lead, mercury, and thallium (Appendix VIII metals bold-faced).

· Grays Siding Structural Fill, Illinois. Disposal of more than 380,000 tons of coal combustion 

waste from the Bunge Corporation’s coal plant adjacent to the rural Grays Siding neighborhood 

(also called Rocky Acres) in Oakville, Illinois may have contaminated two private drinking 

water wells with levels of lead, iron and manganese above Illinois Department of Environmental 

Protection groundwater standards. Recent groundwater sampling at the site identified arsenic, 

barium, chromium, lead, nickel, iron, and manganese at levels that exceeded groundwater quality 

standards, with arsenic, barium, chromium, and lead also exceeding federal primary MCLs.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

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

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 9.7.2 12.1.1.1
552

Comment Excerpt Text:

In the preamble to the Proposed Rule, EPA clearly states that the Proposed Rule only applies to 

CCR generated by electricity or combined heat and power plants whose primary business is to 

sell electricity or electricity and heat to the public (i.e. NAICS Code 221112 plants). EPA also 

states that placement of CCR in minefills is not being addressed in the Proposed Rule, and that 

the United States Department of Interior (“DOI”) and EPA will address the management of CCR 

in minefills in a separate regulatory action. Moreover, even under the Subtitle C option, EPA has 

acknowledged that the Proposed Rule should not apply to beneficially used CCR that is placed in 

mine filling operations, generated by facilities outside the electric power sector (i.e. not included 

in the NAICS Code 221112), or activities associated with cleanups authorized by state or federal 

agencies.

As currently proposed in 40 C.F.R. § 257.40, however, Duke Energy believes that all CCR 

would arguably be subject to the rule. EPA must revise the proposed regulatory applicability 

language in 40 C.F.R. § 257.40(a) to clearly state that the rule only applies to electricity 

generators that are managing CCR and whose primary business is to sell electricity or electricity 

and heat to the public (i.e. NAICS Code 221112 plants) as EPA intended. Left unchanged, the 

regulatory language would subject entities outside of the electric sector to the rule’s 

requirements, including many small businesses, which would be inconsistent with EPA’s 

determination that small business review was not required.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06409-11

Organization1:State of Alaska

Commenter1: Kristin J. Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

1. A primary concern the ADEC has with the proposed Subtitle C regulation is that it classifies 

CCRs based on the source and intended destination of the waste rather than any inherent 

characteristic of the waste. The impact of this is magnified in Alaska because only two of the six 

coal-fired power plants in Alaska will be subject to the proposed regulation. Although all the 

coal burned in Alaska comes from the same source, under the Subtitle C option, 55% of Alaska's 

CCRs will be non-hazardous waste when disposed and 45% will be hazardous waste when 

disposed, a distinction determined solely by which power plant generates the CCRs. Such a 

distinction is nothing short of arbitrary and ignores all existing analytical data that documents 

that CCRs generated from Alaskan coal, regardless of where they are generated, do not exhibit 

the characteristic of toxicity and are not a hazardous waste. Such an arbitrary distinction hardly 
553

meets the EPA's guiding principal that the decision on how to regulate CCRs must be based on 

sound science

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06535-3

Organization1:NC Conservation Network

Commenter1: Peter Walz

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 12.1.1.6

Comment Excerpt Text:

In addition, it is critical that the EPA strengthen the rule to address so called "beneficial uses," 

"mine filling," and the needed regulation of the millions of tons of coal ash generated annually 

by non-utilities. We need strong safeguards that guarantee coal ash will not contaminate our 

drinking water, our rivers, our streams, our wildlife and our communities.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06827-1

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.6

Comment Excerpt Text:

1. The Proposed Rule Arbitrarily Regulates the Electric Power Sector While Excluding Other 

Industries That Generate and Dispose of CCRs

Under the Subtitle C option, CCRs that are generated and disposed in landfills or surface 

impoundments by electric utilities and independent power producers would be regulated as a 

listed hazardous waste (i.e. so-called "SOOI" waste). As such, CCRs and the landfills or surface 

impoundments in which they are disposed would be subject to hazardous waste regulation. 

Conversely, CCRs that are generated and disposed by other industry sectors would not be subj 

ect to regulation under the proposed rule pursuant to 40 CFR 261.4(b)(4)(ii) and 40 CFR 

261.50(b)(4).
554

Under the Subtitle D option, CCRs that are generated and disposed in landfills or surface 

impoundments by electric utilities and independent power producers would be regulated as a 

non-hazardous solid waste. As such, any landfill or surface impoundment in which CCRs are 

disposed would be subj ect to certain minimum national design and operational standards for 

those types of disposal units. Conversely, it appears that CCRs that are generated and disposed 

by industries outside the electric power sector would not be subject to regulation under the 

proposed rule, although there is no explicit language to that effect in the proposed rule itself at 40 

CFR 257.40(a). Instead, OG&E is relying on the language in the summary section of the 

proposed rule in which the Agency states that it is proposing to regulate CCRs to address the 

risks from the disposal of CCRs generated from the combustion of coal at electric utilities and 

independent power producers.

Unlike earlier rulemaking efforts under Subtitle C in which the Agency promulgated rules to 

regulate certain listed hazardous wastes from non-specific sources without regard to the 

industries that generated them, in these proposed rules, the Agency has somehow determined that 

CCRs generated by electric utilities and independent power producers pose a greater threat to 

human health and the environment than those generated by other industries. This is a radical 

departure from the Agency's historical approach in regulating listed hazardous wastes in that, 

until now, it did not matter which industry generated the wastes; if it met the listing criteria, the 

wastes were regulated. Similarly, it did not matter which industry disposed of non-hazardous 

solid wastes in landfills; if such wastes were disposed of in this manner, the landfills were 

regulated pursuant to 40 CFR Part 257, regardless of who owned or operated them.

Thus, it appears that the Agency has elected not to include other industries that utilize coal as a 

fuel source from which CCRs are generated and disposed. If CCRs pose a threat to human health 

and environment as the Agency now asserts, it shouldn't matter which industry generates and 

disposes of them; if any industries are subject to the proposed rule, then all industries that 

generate and dispose of CCRs should be subject to the proposed rule.

Nowhere in the proposed rule does the Agency provide a technical explanation why CCRs 

generated by the electric power sector are different in their physical or chemical composition 

than those that are generated by other industry sectors such that they warrant regulation. The 

Agency likewise does not provide any technical explanation why landfills or surface 

impoundments owned and operated by the electric power sector are designed, constructed and 

operated differently than those of other industry sectors such that they warrant regulation.

In the absence of any such explanation, the proposed rule is arbitrary and capricious in that its 

scope is narrowly written to regulate CCRs generated and disposed by the electric power sector 

while excluding other industry sectors that also generate and dispose of CCRs. In that regard, the 

Agency should amend the proposed rule by removing any exclusion that unfairly favors other 

industries that generate and dispose of CCRs, thereby subjecting all industries that generate and 

dispose of CCRs to any final rule that comes from this rulemaking effort.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06852-16

Organization1:Green Delaware
555

Commenter1: Alan Muller

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Inadequate scope of proposed the rule. 

We are concerned that the proposed Rule may only apply to coal ash generated by electric 

utilities and independent power producers. These are not the only generators of coal ash. Others, 

such as large industrial powerhouses and ethanol plants, may be also be problematic sources. 

Thus, EPA should promptly move to extend the scope of regulation to these and other sources.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

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

Organization1:Eastman Chemical Company (Eastman)

Commenter1: Keith Harris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 4.4.2.1 3.9

Comment Excerpt Text:

EPA states in the Preamble that it is not proposing to revise the Bevill 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 

35165, June 21, 2010, D.IV.F). Under the Subtitle C option, the proposed language at §261.50 

explicitly limits applicability to facilities included in the North American Industrial 

Classification System (NAICS) code 221112. However, the definition of CCR landfill and CCR 

surface impoundment under both the Subtitle C and Subtitle D options, as well as the 

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

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

In order to clarify the applicability and assure its intent, EPA should revise the language at 

§257.40(a) as follows: 

"(a) Applicability. (1) The requirements of this subpart apply to owners or operators of 

CCR landfills and CCR surface impoundments that manage CCR from the electric 

power sector which is defined as electricity-only and combined-heat-and-power (CHP) 

plants whose primary business is to sell electricity, or electricity and heat, to the 

public; i.e . NA1CS code 221112 plant. Any CCR landfill and surface impoundment 

continues to be subject to the requirements in §§ 257.3-1, 257.3-2, and 257.3-3." 
556

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06959-11

Organization1:Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom 

Conservancy

Commenter1: Traci L. Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Finally, the coal ash generated from non-electric producing industries such as soybean 

processing facilities, cement manufacturers, paper or steel mills is not addressed by the proposed 

regulations, even though this waste is as toxic as that from electricity generation. This waste will 

remain under-regulated and held to much lower standards, presenting another continuing threat 

to public health that could and should be promptly addressed.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-06959-9

Organization1:Prairie Rivers Network, Illinois Chapter of the Sierra Club, American Bottom 

Conservancy

Commenter1: Traci L. Barkley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.2 10.5.1.1

Comment Excerpt Text:

Limiting the scope of the proposed regulation of coal ash to that produced by electric generating 

utilities and for coal ash disposed of in landfills and ash impoundments, may increase pressure 

to: 1) reuse greater volumes of coal in so-called “beneficial” ways without additional oversight; 

2) dispose of increased volumes of coal ash in under- regulated coal mines; and 3) unfairly 

exempt coal-fired production facilities such as grain processors, cement kiln, paper and steel 

mils. 

The Illinois Environmental Protection Act allows for coal to be "beneficially used" for a variety 

of purposes including road building, de-icing, amending agricultural soil and producing 

construction materials. Our Illinois EPA or Illinois DNR Office of Mines and Minerals may also 

approve any use not specified in the act so long as the applicant demonstrates to the agency’s 
557

satisfaction that the project will not harm the environment. However, no formal process or 

criteria for this approval exists, no monitoring of the placement of this coal ash is completed and 

there no record is required of where the coal ash is employed. A fill project in McDonough and 

Schuyler Counties, just one of thousands, shows the shortcomings of our current system. 

A recent visit to the Industry Mine facility in September 2010 revealed poor onsite practices 

employed by Springfield Coal Company in their handling of coal ash. The mining operation has 

received permission to dispose of coal combustion waste in mine voids, but more pertinent to the 

scope of the proposed regulation by USEPA at this time, the facility has received permission to 

use fly ash as “fill” material for an onsite ravine. The ravine is the depression that collects 

rainfall from a larger drainage basin, directs the water towards a culvert which drains the water 

into an impoundment of a tributary to Willow Creek. Coal ash was dumped in a large pile that 

was spilling onto the roadway, into the ravine and was moving downgradient from the dumpsite 

as far as the eye could see (Pictures in Attachment B). Light winds present on the day of the visit 

carried clouds of black coal ash into the sky and could be felt in the throat, mouth and eyes of 

both visitors. There was no evidence of purposeful grading for drainage, berms or other 

windbreaks to block wind gusts from blowing ash, wetting of roads or coal ash to prevent 

fugitive dust, or other practices that may be employed to prevent coal ash from moving either by 

air, gravity or water to an undesirable location. All of the water that rains onto this fly ash drains 

into the impoundment of the tributary to Willow Creek. This is important as many local residents 

FISH in this “lake” and CONSUME these fish that likely have building concentrations of heavy 

metals present in the fly ash, sediments and water that make up the impoundment. Unfortunately, 

under current Illinois regulations and under both proposals for coal ash regulation by the 

USEPA, this practice would be allowed to continue with direct threat to fish, wildlife and public 

health. Obviously, this is a site and community that could benefit from greater oversight and 

monitoring of the placement of coal ash and represents many more that exist in our state.

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-07489-29

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Proposed Subtitle C listing will result in liability and use limitations on CCBs produced by nonutility sources. 

As discussed above, under RCRA, "hazardous waste" is defined based on the constituents and 

characteristics of the material, not based on the source of a material. Institutional and industrial 

facilities can generate materials similar in composition to materials generated by utilities. Coal 

ash reflects the composition of the coal fuel, with no distinction in properties of the ash based on 

the boiler's classification as a utility or industrial boiler. In addition, industrial sources supply or 
558

dispose of CCBs in the same fashion as utilities, including for a wide range of beneficial uses. 

Therefore, even if for purposes of CCB disposal, EPA does not regulate institutional/industrialsource produced CCBs, EPA by regulation cannot relieve institutional/industrial producers of 

potential liabilities related to hazardous waste handling and disposal that may arise under other 

areas of law, including claims that may be brought by third parties based on science-based 

definitions of “hazardous” waste. In addition, purchasers of CCBs generally do not segregate 

CCBs based on the originating boiler type. Therefore, institutional/industrial-sector produced 

CCBs will result in liabilities and use limitations that are equivalent to those imposed on the 

utility sector.

The docket and EPA’s discussions make clear that distinguishing CCBs based on non-science 

based characteristics such as utility or industrial boiler source, or ultimate disposal destination, is 

undermined by science, based on which no such known distinction can be made. For example, in 

the Preamble discussion of the risk assessment, EPA describes its interest in data that reflect high 

concentration levels of constituents of concern. In one of the cited examples, reflecting high lead 

concentration, the source of the CCBs was not a utility, but two industrial sources and one 

university source. [Footnote 32: 75 FR 35146.] In conducting a science-based risk assessment, 

EPA necessarily relies on samples from non-utility sources to assess risks. When EPA later 

creates legal distinctions that do not account for the lack of differentiation in the risk assessment, 

EPA will have to defend its line-drawing based on the much weaker rationale of agency policy, 

not science.

EPA should revise the rule and Preamble text to reflect its decision to regulate CCBs generated 

only at utility and IPP sources, and not at industrial, institutional or other sources. The final rule 

should comprehensively define terms and the rule's applicability to expressly exclude CCBs 

produced by non-utility sources from both Subtitle C and D rules. However, the industrial, 

institutional and other sources remain concerned that this approach will result in states regulating 

CCBs from non-utility sources. For that reason, EPA still needs to conduct a comprehensive 

economic analysis of the potential impact of the rule on those non-utility sectors.

As drafted, insofar as the rule will result in the regulation of CCBs from non-utility sources, it is 

arbitrary and unsupported by the record. EPA has not conducted the most basic analysis of the 

non-utility sectors, which is a necessary foundation for its regulation. EPA will need to develop a 

record focused on the institutional and industrial sectors. Such a record should consider at a 

minimum, total contribution of the CCB to be regulated, potential distinguishing features of the 

CCB that may require different regulatory treatment, regulatory impacts on institutional and 

industrial sources, CCB management and disposal techniques, beneficial uses, and any existing 

distinctions under state law for sources. In addition, EPA will need to consider the additional 

burdens on institutional and industrial sources, including the limited ability of these sources to 

pass through compliance costs to customers, direct job impacts, and a double cost burden for 

industrials as consumers of energy produced by the utility sector which EPA proposes to regulate 

in this rule.

The record would also need to address science and risk issues, including analysis of the 

constituents of the ash produced by non-utility boilers, the lower volume production and the 

wide range of beneficial uses.

As discussed in relation to the impact of the rule on beneficial uses, industrial boilers very 

commonly combust combinations of fuels, which could affect ash constituents, potential for 

beneficial uses, environmental and health risks, and multiple other factors not considered in this 

rulemaking. As drafted, the proposed Subtitle C and D regulations will regulate -- directly or 
559

indirectly -- CCBs from institutional and industrial sources. Because the rule lacks any record 

support for that regulatory effect, it is illegal and its effect is arbitrary

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-07534-20

Organization1:Aquaterra Environmental Solutions, Inc.

Commenter1: Scott Waltrip

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Nothing in the proposed Subtitle D rule indicates that it is only applicable to the electric power 

sector as in the Subtitle C proposal. Please clarify whether or not this is intentional, and if it is, 

explain the rationale behind the decision. 

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

referred to Unit VI of the preamble for a discussion on what industries are affected by this rule 

and why. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-23

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

MassDEP recommends that EPA regulate CCR generated by non-utilities in the same manner as 

other CCR generated by utilities. Under the Subtitle D option that MassDEP supports, this 

material would be regulated as non-hazardous solid waste, which is entirely appropriate. BUDs 

would be available for generators to use for beneficial uses of this material.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08269-4

Organization1:Horsehead Corportion

Commenter1: Patrick T. Currier
560

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. THE PREAMBLE CLEARLY STATES THAT INDUSTRIAL RESIDUALS ARE NOT 

COVERED BY THIS RULEMAKING. 

The Preamble clearly provides that EPA does not intend to regulate Industrial Residuals under 

this rulemaking. To be sure, the Preamble opens by expressly emphasizing that the “proposed 

rule would apply to all coal combustion residuals [] generated by electric utilities and 

independent power producers” but that “CCRs from non-utility boilers burning coal are not 

included within today’s proposed rule.”5 Moreover, EPA explains that the “proposed rule may 

affect the following entities: electric utility facilities and independent power producers that fall 

under the North American Industry Classification System (NAICS) code 221112 . . . .”6 NAICS 

code 221112 defines such facilities as those that are “primarily engaged in operating fossil fuel 

powered electric power generation facilities.”7

Furthermore, Part IV.F of the Preamble details EPA’s rationale to maintain the Bevill exclusion 

for Industrial Residuals generated by non-utilities, e.g., manufacturing facilities, universities, and 

hospitals. Specifically, the Preamble states that “EPA is not proposing to revise the Bevill 

exclusion for CCRs generated at facilities that are not part of the electric power sector and which 

use coal as the fuel in non-utility boilers . . . ,” in part because EPA “lacks sufficient information 

at this time to determine an appropriate course of action for the wastes from these facilities.”8 

Importantly, the term “electric power sector” is defined in the Preamble as “that sector of the 

power generating industry that comprises electricity-only and combined-heat-and-power (CHP) 

plants whose primary business is to sell electricity, or electricity and heat, to the public.”9 Such 

a definition clearly excludes those boilers used primarily for industrial purposes - and the 

resulting Industrial Residuals - from the scope of the Proposed Rule. 

In explaining its rationale to maintain the Bevill exclusion for Industrial Residuals generated by 

non-utilities, EPA emphasizes that: 

Industries that primarily burn coal to generate power for their own purposes (i.e., non-utilities) . . 

. are primarily engaged in business activities, such as agriculture, mining, manufacturing, 

transportation, and education. The electricity that they generate is mainly for their own use, but 

any excess may be sold in the wholesale market.10

Consequently, in a decision Horsehead wholly supports, EPA chose “not to assess these [nonutility] operations in today’s proposal, and will instead focus on the nearly 98% of CCRs that are 

generated at electric utilities.”11

B. THE PROPOSED SUBTITLE DREGULATIONS SHOULD EXPRESSLY EXEMPT 

INDUSTRIAL RESIDUALS. 

As the above demonstrates, EPA clearly intended to exempt Industrial Residuals from this 
561

rulemaking. Indeed, as set forth below, this intent is expressly reflected in the proposed 

regulatory language of the proposed Subtitle C regulations, which clearly exclude CCRs 

generated primarily from facilities outside the electric power sector. In contrast, the proposed 

Subtitle D regulations do not include a similar exception for Industrial Residuals, seeming 

instead to regulate CCRs without any distinction as to the source. In order to maintain 

consistency with the intent EPA pronounces in the Preamble and as reflected in the proposed 

Subtitle C regulations, Horsehead respectfully submits that EPA should revise its proposed 

Subtitle D regulations to provide an explicit exemption for Industrial Residuals. 

The proposed Subtitle C regulations add a new category of wastes that would be subject to 

regulation under Subtitle C of RCRA. Specifically, EPA is proposing to list as a special waste, to 

be regulated under RCRA Subtitle C, CCRs from electric utilities and independent power 

producers that are subject to disposal in a landfill or surface impoundment.12 However, EPA 

expressly excludes Industrial Residuals from the proposed Subtitle C regulations, which provide, 

in relevant part that: 

The following solid wastes are not hazardous wastes: . . . ii) Fly ash, bottom ash, boiler slag, and 

flue gas emission control wastes generated primarily from the combustion of coal for the 

purpose of generating electricity by facilities outside of the electric power sector (i.e.,not 

included in NAICS code 221112).13

An exclusion similar to this one could be added to the proposed Subpart D regulations in order to 

remedy EPA’s failure to expressly exclude Industrial Residuals from the purview of Subtitle D. 

For instance, Section 257.1(c) of the existing Subpart D regulations sets forth a list of numerous 

wastes, materials, operations and practices that are exempt from the Subpart D criteria that would 

otherwise apply to solid waste disposal facilities and practices.14 Section 257.1(c) could 

therefore be amended to add an exception for Industrial Residuals. Language similar to the 

following would effectuate the appropriate change: 

“(13) The criteria do not apply to coal combustion residuals that are generated by facilities 

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

Such an amendment, or something similar, is necessary to carry out the intent EPA has clearly 

articulated in the Preamble with respect to excluding Industrial Residuals from this rulemaking.

III. PUBLIC POLICY SUPPORTS EPA’S EXCLUSION OF INDUSTRIAL RESIDUALS 

FROM EPA’S PROPOSED RULEMAKING. 

As previously noted, Horsehead supports EPA’s decision to exclude Industrial Residuals from 

this rulemaking. Public policy supports such a result as EPA correctly and expressly recognizes 

throughout its Preamble. Indeed, EPA’s decision is fully justified given the numerous important 

differences between manufacturing facilities and the electric power sector with respect to coal 

consumption and resulting CCRs. For instance, industrial and manufacturing facilities produce 

significantly less electricity from coal than electric utilities in the electric power sector, and burn 

a significantly smaller amount of the coal consumed for electricity generation. As EPA 

highlights, the Energy Information Administration has determined that industrial and 

manufacturing facilities produced only 2.7% of the total electricity generated from coal 

combustion in 2007, and only burned 2.3% of the total coal consumed for electricity generation 
562

(24 million tons) at 2,967 facilities.15

With respect to the production of CCRs, industrial and manufacturing facilities generate 

significantly less CCRs than electric utilities. EPA estimates that industrial and manufacturing 

facilities generate approximately 3 million tons of CCRs annually, or an average of just over 

1,000 tons per facility. In contrast, electric utilities in the electric power sector generated 136 

million tons of CCRs in 2008, or an average of approximately 275,000 tons per facility.16 

EPA also recognizes that industrial and manufacturing facilities generate other types of waste, 

many of which are generated in much larger quantities than CCRs, and thus they are likely to be 

mixed or co-managed together. As a result, the composition of any co-managed waste might be 

fundamentally different from the CCRs that are generated by electric utilities. By EPA’s own 

admission, the data gathered to support this rulemaking did not include CCR generated from 

manufacturing facilities.17 Consequently, without a better understanding of the co-managed 

waste at such facilities, EPA rightfully defers consideration of the issue, instead requesting 

additional information on Industrial Residuals resulting from the combustion of coal at nonutility boilers.18

As the above demonstrates, industrial and manufacturing facilities are distinct from facilities 

within the electric power sector, both in practice and as EPA has defined the term “electric 

power sector” in the Preamble. To be sure, industrial and manufacturing facilities use their 

boilers to generate electricity mainly for their own use, with some limited excess sold in the 

wholesale energy market. In contrast, the electric power sector comprises plants whose primary 

business is to generate and sell electricity to the public. The EPA correctly recognizes these key 

differences in its Preamble and Horsehead supports EPA’s conclusion that Industrial Residuals 

produced at industrial and manufacturing facilities should not be subject to this rulemaking. 

Finally, EPA’s decision to maintain the Bevill exclusion for Industrial Residuals is consistent 

with EPA precedent and supported by prior EPA analysis of the issue. For instance, on May 22, 

2000, EPA issued a regulatory determination in which EPA concluded, in part, that the fossil fuel 

combustion wastes from non-utility boilers and co-managed wastes not generated by electric 

utilities did not warrant regulation as hazardous waste under Subtitle C of RCRA.19 This 

determination was based, in part, on the agency’s March 1999 report analyzing wastes generated 

from sources other than those from the electric power sector. The report determined that such 

wastes, including those from non-utility boilers, should remain exempt from RCRA Subtitle 

C.20 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08270-1

Organization1:Cliffs Natural Resources Inc. (Cliffs)

Commenter1: David Z. Skolasinski

Commenter Type: Other Company

Classification: Substantive
563

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.1 3.1.2 7.3.1 7.1.1.2 5.5.1 5.5.2

Comment Excerpt Text:

The Impact To Non-Utilities Of A Subtitle C Determination Of CCRs 

The SBP power plant is not a part of the Electrical Power Sector (Electric Utilities and 

Independent Power Producers) as defined in 75 Fed. Reg. at 35,130 because its primary business 

is to provide electricity and heat for the ore mining and processing operations as opposed to the 

sale of electrical power and heat to the public. Therefore, CCRs produced at this plant are not 

subject to the proposed Rule. However, because of the precedent that will be set by this 

rulemaking and the possibility that EPA may proceed with rulemaking to address CCRs from N 

on-Electric Power Sector power plants at some future date, Cliffs is very interested in EPA's 

CCR waste determination in this rulemaking. 

Except for a portion of the CCRs that are sold for beneficial use, all of the remaining CCRs that 

are produced at SBP are disposed in an engineered landfill, the design of which includes an 

impermeable synthetic liner beneath the CCR pile, an impermeable synthetic cap over each filled 

landfill cell, a leachate collection system to remove stOlmwater that accumulates from within the 

CCR pile on top of the liner, and monitoring wells to monitor the integrity of the landfill. The 

landfill was designed in conformance with Minnesota solid waste regulations. The Minnesota 

Pollution Control Agency approved the design of the landfill and issued a solid waste disposal 

system permit for the landfill that includes monitoring and repOliing requirements among other 

conditions. There are other landfills in the state that are similarly designed, permitted, and 

operated by public utilities. Should EPA decide to regulate CCRs as Subtitle C hazardous wastes, 

this would result in a significantly increased pennitting effOli for such landfills, along with 

significantly increased costs of construction, operation, monitoring, and reporting. This would 

result in a much greater burden to the state permitting agency, as well as to the owner and 

operator of the landfill with no environmental benefit being derived. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-27

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1 3.5.2.1

Comment Excerpt Text:

It is not clear that imposing these requirements on CCR generators is addressing a demonstrable 

problem. The principal justification that EPA uses in advocating for Subtitle C regulation 
564

involves damage cases associated with disposal. None of the cited incidents involves 

management of CCRs before the point of disposal. In fact, EPA's decision to maintain the 

exemption from being regulated as hazardous waste for CCRs that are beneficially used leads to 

a contradictory state of affairs where the exact same material would face radically different 

management standards while on-site at the point of generation up to the point of final disposition, 

depending on what the ultimate disposition of the material is to be. 

A similar contradiction exists with respect to CCRs destined for disposal that are generated by 

facilities EPA has elected not to regulate under the proposal (i.e., non-investor owned and nonmunicipal coal burning utilities not falling under NAICS code 221112). In this case, identical 

materials are made subject to radically different regulatory requirements, based only on the type 

of generator. This contradiction is perhaps manageable for CCRs managed and disposed on-site 

at the generating facility; however, it would be problematic and confusing for regulators, waste 

managers, beneficial users, and especially the public for materials managed and disposed off-site 

or beneficially used.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08850-10

Organization1:Lansing Board of Water & Light (BWL)

Commenter1: Lansing Board of Water & Light (BWL)

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Perception Problems Arise from the Definition of S001. The Lansing Board of Water & Light 

operates both electric generating boilers and steam heat boilers. Only those boilers that are used 

for electric generation and fall under the NAICS Code 221112 are included in the Subtitle C 

proposal. Coal ash generated by a facility only a few miles away, generating both steam and 

electricity is not considered hazardous because it is not classified as an electric utility. Ash 

generated at all of these facilities possess close to identical characteristics. This inconsistency 

creates an ambiguous perception and leaves room for abuse. 

Response: The Agency acknowledges and appreciates this comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09239-54

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
565

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle D should only govern CCRs generated by electric utilities and independent power 

producers. Throughout the preamble, EPA indicates that only coal ash generated by electric 

utilities and independent power producers is subject to regulation. However, the applicability 

section does not limit the applicability of the rule to CCRs generated by electric utilities and 

independent power producers. To avoid any confusion, PSGC recommends that the applicability 

section be modified to be consistent with the applicability section proposed for Subtitle C. 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09266-1

Organization1:Power and Water Department, Michigan State University (MSU)

Commenter1: Robert Ellerhorst

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA stated they intended to exclude CCRs regulated by non-utility boilers, such as the boilers 

operated by MSU, from all regulation under the Proposed CCR Rule; however, EPA failed to 

include such an exclusion in the rules proposed for the Subtitle D option. In Section A of the 

preamble to the Proposed Rule, EPA stated that "CCRs from non-utility boilers burning coal are 

not included in today’s proposed rule." 75 Fed. Reg. at 35,129. EPA expanded on this statement 

in Section IV.F of the preamble, entitled "EPA Is Not Proposing To Revise the Bevill 

Determinationfor CCRs Generated by Non-Utilities": "In this notice, EPA is not proposing to 

revise the Bevill exclusion for CCRs generated at facilities that are not part of the electric power 

sector and which use coal as the fuel in non-utility boilers, such as manufacturing facilities, 

universities, and hospitals. The Agency lacks sufficient information at this time to determine an 

appropriate course of action for the wastes from these facilities. 

Industries that primarily burn coal to generate power for their own purposes (i.e., non-utilities), 

also known as combined heat and power (CHP) plants, are primarily engaged in business 

activities, such as agriculture, mining, manufacturing, transportation, and education." 

75 Fed. Reg. 35,165. 

With respect to the Subtitle C option, EPA included such an exclusion for nonutilities in the 

SOO 1 waste code listing, which expressly excludes facilities that are outside ofthe electric 

power sector, i.e., facilities not included within NAICS code 221112. With respect to the Subtitle 

D option, however, the definitions of "Coal Combustion Residuals" contained in proposed 40 

C.F.R. § 257.40 does not distinguish between CCRs generated by utilities and non-utilities. 
566

In order correct this oversight, MSU requests that EPA revise the definition of CCRs in the 

Subtitle D option as follows: 

Coal Combustion Residuals (CCRs) means fly ash, bottom ash, boiler slag, and flue gas 

desulfurization materials. CCRs are also known as coal combustion wastes (CCWs) and fossil 

fuel combustion (FFC) wastes generated by the electric power sector (Electric Utilities and 

Independent Power Producers, i.e .. NAICS code 221112 plants). 

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09273-14

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1: Wayne Gieselman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Excluding Non-Utility CCR Generation Is Not The Answer. Excluding all nonutility generation 

CCR from regulation under the proposed Subtitle C approach will result in enforcement 

inconsistencies. If the goal is environmental protection from the documented negative 

environmental impacts of the mismanagement of CCR, then the Agency should not be exempting 

CCR from non-utility generators (e.g. manufacturing, universities, hospitals, etc.), as their CCR 

is often chemically identical to that generated by electric utilities and in some cases contains 

higher pollutant levels than CCR generated by electric utilities.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-2

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.1

Comment Excerpt Text:
567

EPA Correctly Excluded Pulp and Paper Mill Coal Combustion Residuals from this Rulemaking

AF&PA supports EPA’s decision not to include coal combustion residuals from the 

manufacturing sector in this rulemaking. The pulp and paper industry’s management of coal ash 

differs somewhat from that of the electric utilities – which uses 95 percent of all coal in the U.S. 

Therefore, we think that it makes sense to review our operations before regulating them.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-4

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

AF&PA agrees with EPA’s proposed definition of the Electric Power Sector as “that sector of 

the power generating industry that comprises electricity-only and combined-heat-and-power 

(CHP) plants whose primary business is to sell electricity or electricity and heat, to the public.” 

We believe this definition properly excludes other energy generating units associated with 

industrial operations that may only incidentally sell electricity to the public.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-5

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.9 4.7 4.4.3

Comment Excerpt Text:

EPA Must Exclude CCRs from Pulp and Paper Mill Coal Combustion under the Definition of 

CCR
568

Within both the Subtitle C proposal (at Section 264.1301) and Subtitle D proposal (at Section 

257.40(b)), EPA must revise its definitions of “Coal Combustion Residuals (CCRs)” to exclude 

non-electric utility residuals. The current definitions do not distinguish between electric utility 

and non-electric utility coal combustion residuals. However, the entire preamble of the rule for 

both the Subtitle C and Subtitle D proposals states that the proposals – regardless of which is 

chosen -- are directed towards electric utility residuals only. Therefore, the definitions must be 

revised to address only those residuals meant to be regulated by this rulemaking.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09951-5

Organization1:Full Circle Solutions, Incorporated

Commenter1: Robert J. Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has requested information and data on CCRs that are generated by nonutility industries such 

as volumes generated, characteristics of the CCRs and whether they are co-managed with other 

wastes generated by the non-utility industry.

Full Circle Solutions, Inc. has contracted with many non-utility generators of CCPs . These 

include institutional producers such as hospitals and schools. They also include a variety of 

industries such as furniture, food, textile, and chemical manufacturers .

In general, mo non-utility CCP producers have boilers much smaller than those of utilities. They 

typically produce 5, to 15, tons per year of CCPs at each plant.

The characteristics are nearly the same as utility CCPs. TCLP leachates are virtually identical. 

The major difference is the lack of FGD scrubbers. There are some minor differences with fly 

ash and bottom ash. Many non-utility industries use stoker boilers instead of pulverized coal 

boilers. The CCPs from stokers are generally coarser and have more carbon than those from 

pulverized coal boilers.

Disposal of non-utility CCPs may be either with or without other wastes. Typically, CCPs are 

briefly stored in a silo and then trucked to a disposal site. This may be an on-site CCP landfill 

dedicated solely to CCPs. On-site disposal may also be together with other industry generated 

wastes . However, most of the non-utility generators we have encountered have disposed of their 

CCP waste in a municipal solid waste landfill where it is mixed with many other types of waste.
569

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10681_DC-069-1

Organization1:American Forest & Paper Association (AF&PA)

Commenter1:Amy E. Schaffer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.1

Comment Excerpt Text:

The forest products industry accounts for approximately 5 percent of the total U.S. 

manufacturing GOP, putting it on par with the automotive and chemical industries. Industry 

companies produce $200 billion in products annually and employ approximately 900,000 people 

earning $54 billion in annual payroll. The industry is among the top 10 manufacturing sector 

employers in 48 states.

According to the Energy Information Administration, the pulp and paper industry uses about 1 

percent of the coal burned in the United States. We use coal to generate electricity and steam. 

Virtually all our facilities that generate electricity do so using highly-efficient combined heat and 

power technology. We are the largest user of coal after the electric utility sector. As a result, we 

are greatly interested in the rulemaking that EPA is undertaking concerning the regulatory 

scheme for coal combustion byproducts.

AF&PA supports EPA's decision not to include coal combustion byproducts from the 

manufacturing sector in this rulemaking. We believe that our management of coal ash differs 

somewhat from that of the electric utilities. Pulp and paper mills use a wide variety of fuels -- in 

addition to coal. As a result, our mills frequently co-manage coal ash with ash generated from 

other fuels, particularly biomass. We believe that our ash management units are significantly 

smaller than those in the utility sector. Therefore, we think that it makes sense to review our 

operations before regulating them.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-11652_K-067-2

Organization1:Tennessee Paper Council (TPC) and American Forest & Paper Association 

(AF&PA)

Commenter1:Richard Holland

Commenter Type: Trade Association

Classification: Substantive
570

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We support EPA's decision not to include coal combustion byproducts from the manufacturing 

sector in this rulemaking. We believe that our management of coal ash differs somewhat from 

that of the electric utilities. Pulp and paper mills use a wide variety of fuels -- in addition to coal. 

As a result, our mills frequently co-manage coal ash with ash generated from other fuels, 

particularly biomass. We believe that our ash management units are significantly smaller than 

those in the utility sector. Therefore, we think that it makes sense to review our operations before 

regulating them.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: TRANS-ARL-0005-1

Organization1:American Forest and Paper Association

Commenter1:Amy Schaffer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

AF&PA supports EPA's decision not to include coal combustion byproducts from the 

manufacturing sector in this rulemaking. We believe that our management of coal ash differs 

somewhat from that of the electric utilities. Pulp and paper mills use a wide variety of fuels in 

addition to coal. As a result, our mills frequently co-manage coal ash with ash generated from 

other fuels, particularly biomass. We believe that our ash management units are significantly 

smaller than those in the electric utility sector. Therefore, we think it makes sense to review our 

operations separately before regulating them.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Comment Number: TRANS-PIT-0025-4

Organization1:Alcoa

Commenter1:Tony Schoedel

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
571

Comment Excerpt Text:

Four, as stated in the proposed rule, industrial facilities like Alcoa are exempt from this rule. 

Alcoa requests EPA clarify the distinction between industrial and utility utilizing the definitions 

contained in the Green Subtitle of the Clean Air Act.

Response: The commenter is referred to Unit IV of today’s preamble for a discussion on our 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Unit VI 

for a discussion of what industrial sectors and covered by the rule. 

Section 2.4 - Legal Issues with the ELG Proposed Rule related to CCR

No comments are associated with this issue.

Section 2.4.1 - CWA authority to propose BMPs for CCR surface impoundments

No comments are associated with this issue.

Section 2.4.2 - Exclusions from ELG/CCR rules (e.g., CCR used for mine reclamation; size 

cutoff)

Total Number of Submissions: 5

Total Number of Comments: 7

Comment Number: EPA-HQ-RCRA-2013-0209-0013-4

Organization1:Florida Electric Power Coordinating Group, Inc. (FCG)

Commenter1:

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Additionally, the FCG requests that EPA confirm that “combustion residual leachate” does not 

apply to stormwater from landfills or water that comes into contact with CCRs that have been 

beneficially used.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0021-2

Organization1:The Large Public Power Council (LPPC)

Commenter1:

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 14.1.1.2 14.1.1.1 14.1.1.3
572

Comment Excerpt Text:

I. ELGs Should Maintain the Option of Impounding Bottom Ash Transport Water for All 

Existing Facilities.

In the proposed rule, three of the eight options (Options 4, 4a, and 5); including the lead option 

for regulating bottom ash, propose to set a zero discharge limitation for bottom ash.

This will likely require the use of a dry handling technology that will obviate the use of transport 

water for bottom ash. [Footnote 3: 78 Fed. Reg. 34,462 (June 7, 2013).]

The alterntive to meeting this zero discharge limitation would involve the installation of 

technology for “managing a wet sluicing bottom ash handling system so that it does not 

discharge bottom ash transport water or pollutants associated with the bottom ash transport 

water.” [Footnote 4:78 Fed. Reg. 34,462 (June 7, 2013).]

Approximately 20 percent of affected plants that generate bottom ash use a dry handling 

technology or other system that eliminates the use of the transport water. The remaining 80 

percent of the plants use water to transport the bottom ash to a surface impoundment or 

dewatering bins.5 Discharges occur from the surface impoundments or from blowdown from the 

water reused in the sluicing process. At some locations, these discharges are sent to an on-site 

central wastewater treatment facility. Therefore, EPA’s adoption of a zero discharge limit for this 

wastewater stream would have a major impact on the electric power industry. Specifically, it 

would require 80 percent of the current coal fleet to convert to dry handling of coal ash or other 

technology for eliminating the discharge of any pollutants from the discharge of the bottom ash 

transport water. These options would impose significant cost on the industry: retrofits of new 

material handling equipment in the limited space underneath existing boilers are complex and 

expensive.

Of additional concern is the distinction the proposed rule makes between smaller units (= 400 

MW) and larger units (> 400 MW) with regard to bottom ash transport water. EPA’s preferred 

option is to allow for the continued use of wet handling at smaller units, while requiring larger 

units to convert to dry handling systems. For existing units, EPA should continue to allow the 

use of impoundments and wet sluicing of bottom ash regardless of unit size.

EPA’s lead option (4a) would allow combustion residual leachate (generated from

bottom and fly ash impoundments or landfills) to be controlled by a surface impoundment, while 

bottom ash transport water from units greater than 400 MW would have to use dry handling 

containment. There is no rationale for requiring dry handling of bottom ash when the Agency is 

clear that combustion residual leachate can be adequately controlled by an 

impoundment.[Footnote 6:78 Fed. Reg. 34,463 (June 7, 2013).] EPA has proposed that facilities 

sample and monitor the residual leachate from surface impoundments and landfills containing 

combustion residuals (including bottom ash) to ensure these wastes are not adversely impacting 

the environment. As noted below, the composition of such wastes has not significantly changed 

since the regulations were last promulgated in 1982. If an impoundment provides appropriate 

treatment for combustion residual leachate, it will also provide appropriate treatment for bottom 

ash transport water.

Consistent with preferred options 3a, 3b, and 3, EPA should therefore allow EGUs with units 
573

greater than 400 MW to sample and monitor bottom ash transport water, as proposed for 

combustion residual leachate, rather than require conversion to a dry handling system.

Additionally, unlike FGD wastewater and some wet fly ash handling, the chemical

compositions of bottom ash have not changed significantly since the last ELG was issued in 

1982. There are no new chemicals in the bottom ash transport water that the current 

impoundment systems do not adequately treat. The characteristics of bottom ash – inert, angular 

shaped, granular particles, and glass-like surface structure – results in its multiple industrial uses, 

such as aggregate in light weight cement, a feedstock for cement, shingles, and aggregate in road 

bases. These beneficial uses were developed with bottom ash mined from surface impoundments 

and should continue.

In addition, industry experience indicates that converting existing EGU’s bottom ash handling 

systems to dry handling systems is extremely costly and has minimal health and environmental 

benefits. Retrofitting dry collection would require long unit outages and substantial associated 

replacement power costs during the outages. In addition, the construction required for dry 

collection would occur in the section of the facility that is most congested, which will further 

increase the cost and technical challenges of completing such retrofits. Therefore, because there 

will be little environmental benefit and significant costs, EPA should maintain the surface 

impoundments treatment option for bottom ash transport water at all EGUs regardless of unit 

size.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0036-2

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1:

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The rule should also clearly state that proposed rule is not applicable to coal mine sites where 

CCRs have been or are being used for mineland reclamation. Nothing in the rule or record 

indicates that EPA intends this rule to cover CCR management for mineland reclamation, nor 

does the record include any data or analysis that would support the application of this rule to 

those activities. This rule references the pending CCR rule proposed in 2010 but not finalized. 

The pending CCR rule clearly states that it does not address the beneficial use of CCR at mine 

sites or in mines. Therefore, to dispel any concern that this proposed ELG rule could apply to 

mineland reclamation use of CCRs, the applicability provision should state clearly that it does 

not.
574

Comment Number: EPA-HQ-RCRA-2013-0209-0036-3

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1:

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.13

Comment Excerpt Text:

A related concern is how EPA and States may use the economic analysis supporting these 

proposed ELGs for CCRs. The final rule should make clear that the economic analysis supports 

this proposed ELG rule only and should not be used by permit writers in the future for CCRs 

related to non-EGUs.

Provide the exclusion in regulatory text. The preamble explains that the proposed guidelines do 

not apply to industries that generate power for use in manufacturing. 77 FR 34446. However, the 

exclusion of those sources does not appear in the applicability provision at Proposed § 423.10 or 

in any other regulatory text. Neither the preamble nor the regulatory text expressly excludes 

another industrial source that could be inadvertently caught up in the rule: university facilities 

that generate electricity for onsite campus use. Refinements in the regulation (not only the 

preamble) are needed to ensure states do not incorrectly apply this rule to sources that are not in 

the steam-electric source category.

So that there be no possible confusion as to what sources are covered by this rule, CIBO suggests 

that the exemption be made a part of the regulation itself, not only the preamble, and that the 

exemption very clearly relate to the wide range of facility operations that are not part of the 

steam electric point source category. Further any economic analysis is establishing ELGs for 

CCRs. The final rule should make clear that the economic analysis supports this proposed ELG 

rule only and should not be used by permit writers in the future for CCR related to non-EGUs.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0038-9

Organization1:Edison Electric Institute (EEI)

Commenter1:

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, EPA should clarify that the term “combustion residual leachate” does not include 

water that has come into contact with CCR that has been beneficially used and has not been 

disposed of or otherwise managed in a CCR landfill or surface impoundment.
575

It is important to encourage the beneficial use of CCR. For example landfills and impoundments 

are sometimes constructed using structural fill and embankments using CCR. Operators of a 

landfill may use CCR for daily cover and as part of the final cover material when the landfill is 

closed. CCR can also be used as road base for service roads to landfills and for other roads as 

well.

These uses of CCR are not used to “contain” residuals and therefore do not fall within the 

proposed definition. But EPA should clarify that this is so. The final ELG rule should say clearly 

that the term “combustion residual leachate” does not include water that may come into 

incidental contact with CCR used in beneficial use applications.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0055-2

Organization1:ARIPPA

Commenter1:

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.7

Comment Excerpt Text:

b. Applicability of the rule relative to the beneficial use of coal combustion residuals in coal 

mine land reclamation

In discussing this in the Proposed ELG rule and in the technical guidance document, EPA has 

made the assumption that the disposal of CCRs from electric generation units would be in lined 

landfills. A key aspect of this assumption is described in both the Proposed ELG rule and the 

technical guidance document related to ELGs. While the proposed CCR Rule discusses the use 

of lined landfills related to the disposal of CCRs, the Proposed CCR rule acknowledges that it 

would not be applicable CCRs beneficially used and that is was not applicable to CCRs being 

used in coal mine land reclamation.

This is highlighted in the Executive Summary of the proposed rule regarding ELGs, which 

reads1:

“This proposed rule would reduce current toxic and other pollutant discharges and their 

associated impacts. In general, depending on the option, the proposed rule would establish new 

or additional requirements for wastewaters associated with the following processes and 

byproducts: Flue gas desulfurization (FGD), fly ash, bottom ash, flue gas mercury control, 

combustion residual leachate from landfills and surface impoundments, gasification of fuels such 

as coal and petroleum coke. In addition to the proposed requirements, as part of this rulemaking 

EPA is considering establishing best management practices (BMP) requirements that would 

apply to surface impoundments containing coal combustion residuals (e.g., ash ponds, FGD 
576

ponds). EPA is also considering establishing a voluntary program that would provide incentives 

for existing power plants that dewater and close their surface impoundments containing 

combustion residuals, and for power plants that eliminate the discharge of all process wastewater 

(excluding cooling water discharges).”

ARIPPA has concerns about this aspect of the rule. First, the proposed CCR rule is clear 

regarding the rules applicability to the use of CCRs in coal mine land reclamation. The Summary 

of the proposed rule contains the following statements2:

“EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used 

CCRs, which are currently exempt from the hazardous waste regulations under Section 

3001(b)(3)(A) of RCRA. However, EPA is clarifying this determination and seeking comment 

on potential refinements for certain beneficial uses. EPA is also not proposing to address the 

placement of CCRs in mines or non-mine fill uses of CCRs at coal mine sites in this action.”

As such, the proposed ELG should not be applicable to CCRs used in mine land reclamation and 

must be clearly stated this in the final ELG rule.

Further, the technical development document does not discuss the use of CCRs in coal mine land 

reclamation. This demonstrates that EPA did not study this aspect and as a result state in the final 

rule that it is not applicable to coal mine sites beneficially utilizing coal ash in the site 

reclamation. Without the clarification, beneficial utilization in mine sites would be become 

tremendously expensive if not impossible?

ARIPPA had provided comments on the CCR rule. In its comments, ARIPPA described the 

multi-step process utilized by Pennsylvania Department of Environmental Protection’s program 

regarding the beneficial use of coal combustion residuals in mine land reclamation. IF the CCR 

meets the physical, chemical, and leaching characteristic of CCR as set forth in their rules, it 

would be approved for beneficial use in coal mine land reclamation.

Over 205 million tons of coal refuse has been burned in coal refuse fired CFB facilities. Further, 

the CCRs produced has been utilized in reclaiming over 7,200 acres of coal mine lands returning 

the land to a productive use, eliminating sites as source of air pollution, eliminating 

sedimentation problems and ameliorating mine drainage improving water quality.

EPA’s Office of Water is aware of this and other success in Pennsylvania related to remining 

when it established a new Coal Remining Subcategory in 40CFR Part 434 to reduce severe and 

extensive damage resulting from abandoned mine lands. Acid mine drainage from abandoned 

coal mines is the number one water quality problem in the Appalachian States. It is estimated 

that there are over 1.1 million acres of abandoned coal mine lands, over 9,000 miles of streams 

polluted by acid mine drainage, and many miles of dangerous embankments, highwalls, and 

surface impoundments. The acid mine drainage that originates from these abandoned mine lands 

are considered "pre-existing discharges."

The Coal Remining Subcategory covers discharges resulting from previous mining activities on 

mine land that have been abandoned (termed a "pre-existing" discharge). A coal remining 
577

operator must develop a site-specific pollution abatement plan designed to reduce the pollution 

load from pre-existing discharges. The plan must incorporate the design and implementation of 

Best Management Practices (BMPs). EPA published a guidance manual which describes 

abandoned mine land conditions and the performance BMPs that have been successfully 

implemented on remining operations. The “COAL REMINING BEST MANAGEMENT 

PRACTICES GUIDANCE MANUAL” (EPA 821-R-00-007, Published March 2000) developed 

by the Office of Water, Office of Science and Technology, Engineering and Analysis Division.

The BMP Manual describes a variety of uses of Coal Ash Use as a “Best Management Practice”. 

In fact, the following statement is made with regard to coal refuse, which reads:

“Coal refuse reprocessing removes an acid-producing material. This material is burned to 

produce electricity, and the ash that is produced, which is frequently alkaline, is returned to the 

site where it can neutralize acid. (Page 23)”

ARIPPA Member facilities use remined coal refuse as fuel for their CFB Boilers. They also 

beneficially use the highly alkaline CFB Coal Combustion Byproduct (approved for beneficial 

use under Pennsylvania’s regulations) as part of their abatement plan to address pre-mining 

pollution discharges from the areas where the coal refuse is being mined.

Of further interests, the preamble to the ELG reference several EPA rule makings related to the 

control of air pollutants. The preamble to these referenced rules includes comments regarding the 

multiple environmental benefits related to the coal refuse fired units resulting from the burning 

of the coal refuse and the reclamation of these mine land sites.

ARIPPA believes that EPA needs to acknowledge that the proposed rule does not address the 

beneficial utilization of coal ash in mine land reclamation and as such the effluent limits are not 

applicable to these sites. Further, EPA should restate that the use of Coal Ash in mine land 

reclamation is a BMP and will continue to be a BMP for remining and mine land reclamation 

operations.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0055-3

Organization1:ARIPPA

Commenter1:

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

c. Proposed Applicability Alternatives
578

EPA has identified four preferred alternatives for regulation of existing discharges in the 

proposed rule (and it has identified one preferred alternative for regulation of new sources). 

These are:

1. Discharges directly to surface water from existing facilities

2. Discharges to POTWs from existing facilities

3. Discharges directly to surface water from new sources

4. Discharges to POTWs from new sources

EPA’s proposed options to addressed the rule, includes language that provides exceptions; for 

example

- Option 3A provides an exception for oil fired units and small generating units (I.e., 50 MW or 

Smaller)

- Option 3B provides s similar exception for oil fired units and small generating units (I.e., 50 

MW or Smaller)

- Option 3C provides an exception for small generating (i.e., 50 MW or smaller)”

- Option 4a provides an exception for zero discharge for all units less than 400 MW with the 

exception of all generating units with a nameplate capacity of 400 MW or less (for those 

generating units that are less than or equal to 400 MW, the proposed rule would set BAT equal to 

BPT for discharges of pollutants found in the bottom ash transport water). In addition, for 

oilfired generating units and small generating units (i.e., 50 MW or smaller) that are existing 

sources and discharge directly to surface waters, under the four preferred alternatives for 

regulation of existing sources, the proposed rule would establish effluent limits (BAT) equal to 

the current BPT effluent limits for the waste streams listed above.

While EPA solicited information from ARIPPA Plants, but due to the small size and number, 

EPA did not visit these plants to fully examine their water management strategies and how they 

operate. Based on the knowledge that the CCR management systems associated with CFB 

Technology, the CCRs are basically managed as dry ash systems and any water associated with 

ash management is used to condition the ash for placement in a fill (lined landfill, structural fill, 

or in coal mine land reclamation).

Accordingly ARIPPA suggests that EPA provides an exception for units (that are less than 

300MW) utilizing dry ash management systems -or- CFB-FBC units (less than 150 MW) that 

also utilize dry ash management systems.

Response: The Agency acknowledges and appreciates the comment.

Section 2.4.3 - Other legal issues related to ELG/CCR coordination, including impacts of 

other rules (e.g., CAA) and cumulative impacts

Total Number of Submissions: 8

Total Number of Comments: 9
579

Comment Number: EPA-HQ-RCRA-2013-0209-0006-1

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

One 1000 megawatt coal fired power plant burns 4 million tons of coal per year. Coal varies 

from 96% carbon to 25% carbon. That means that 166667 tons to 12 million tons of cinders and 

ash are left over. As I told you in my last comment, that includes about 1/3 of the periodic table, 

including uranium and its decay products, arsenic, etcetera. 

Coal ash and cinders are radioactive waste equivalent to nuclear waste and should be treated the 

same as nuclear waste. Besides that, coal ash and cinders contain poisonous elements that 

dissolve in water. 

Coal ash and cinders must be treated as nuclear waste.

The limits for water and air pollution for coal fired power plants must be the same as the limits 

for nuclear power plants.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0014-5

Organization1:Pennsylvania Coal Alliance (PCA)

Commenter1:

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 13.1 16.2

Comment Excerpt Text:

EPA should take into consideration the cumulative effect of its recent proposed and enacted rules 

on the electric power industry and provide maximum flexibility regarding implementation and 

implementation timelines to mitigate the collective impact of all the various rulemakings. 

Since June 2010, EPA has proposed and/or published nine major rulemakings including:

o CCRs as a possible hazardous waste under RCRA

o NESHAP rule regarding Hazardous Air Pollutants (HAPs)

o Cooling water withdrawals

o Cross-State Air Pollution Rule (CSAPR)

o Mercury and Air Toxics (MATS)

o NSPS for carbon dioxide emissions

o NAAQS for fine particulate matter
580

o Pre-permit fine particulate monitoring requirement exemptions

o Greenhouse gas emissions and other climate changes

From a practical standpoint, EPA must consider the cumulative implementation impacts of not 

only the availability of capital to make the required changes, but also the design and engineering 

needs including the ability to find, contract and schedule contractors. Furthermore, this must all 

be done in the most comprehensive, cost-effective, feasible approach encompassing all a 

company’s facilities to allow for continued uninterrupted generation reliability.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0016-22

Organization1:Southern Company

Commenter1:

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Compliance Timing Issues Southern Company has more experience retrofitting environmental 

controls than any other utility in the industry. Southern has spent $8.7 billion dollars on 

environmental controls since 1990. The Company has installed scrubbers and SCRs on 26 and 20 

units, respectively.

During the proposed implementation period of the ELG Rule, Southern’s fossil generation fleet 

will likely be in the midst of an unprecedented period of environmental retrofits to comply with 

Mercury and Air Toxics Standards (MATS), ozone revisions, the CCR rule, the § 316(b) rule, 

and others. Therefore, we ask that EPA clarify that state permitting authorities have the ability to 

provide case-by-case compliance schedules that may extend past July 2022.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0019-14

Organization1:American Electric Power (AEP)

Commenter1:

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.13

Comment Excerpt Text:

EPA’s annualization of the compliance costs is misleading in that: 1) it characterizes costs as 

affordable; and 2) neglects to consider the impacts to companies for financing in a capital 
581

intensive industry. EPA assumes that the cost of these retrofits will be annualized over a 20-year 

period, but this position inherently assumes that all of the affected facilities from this rule will 

operate over that entire timeframe. Given the current environmental regulatory climate, older and 

less efficient facilities that dispatch less frequently, but provide some economic benefit, will be 

adversely affected through these guidelines and future rule promulgations, such as with proposed 

CCR and 316(b) rules, as well as the anticipated Greenhouse Gas Standards for existing sources. 

Though the proposed ELG rule may not make these units uneconomic to generate electricity over 

a short term by itself, the cumulative effect of the ELG in combination of other regulations may 

push these units into an accelerated retirement. Many of the affected facilities will not have 20-

year lifespans or service lives, but will still have to shoulder the financial burden to comply with 

these rules in the short term. The EPA’s analysis is not sufficiently refined to properly account 

for these shortened facility service life periods.

For example, such a scenario where a shortened service life is evident when considering the EPA 

Settlement Agreement that remedies the dispute with the Regional Haze Rule state 

implementation plan entered in Oklahoma. In the Settlement Agreement AEP and EPA agreed 

that one of the coal-fired units of the Northeastern Station will retire in 2016, while the other unit 

will operate through 2026. The remaining operating unit will have to meet compliance with the 

ELG, as well as CCR, and these costs cannot be annualized over twenty years because the 

remaining plant life ends in 2026. Any costs that aren’t fully amortized will need depreciation 

adjustment to align with plant retirement dates, elevating the annualized cost impact of the rule. 

Aligning cost recovery with customers who receive the benefits of service is vitally important for 

regulatory commissions in order to not unfairly burden future customers with costs for which 

they do not receive any service benefit.

Further, the EPA assessment of estimated costs for compliance neglects to consider the capital 

requirements of utility’s to install control technologies over a short compliance period of a few 

years. As stated above, the AEP estimated costs could potentially approach $4 billion. To 

contrast, AEP’s near-term capital forecast is $3+ billion per year, but these expenditures 

encompass all business segments including transmission and distribution, in addition to 

generation. Expenditures to comply with the ELG will directly follow the current large 

expenditures within AEP’s capital budget to comply with the Mercury and Air Toxics Standard 

by the 2015-2016 timeframe.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0019-2

Organization1:American Electric Power (AEP)

Commenter1:

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
582

Implications of Cumulative Environmental Rules

AEP is concerned that the cumulative impact of the extraordinary number of current rulemakings 

which would govern various emissions and releases from steam electric power generating 

facilities, as well as setting new effluent guidelines standards, controls on cooling water intakes, 

and coal combustion residual (CCR) requirements, will have a significant impact on the 

reliability of the national electric grid and on the economy. AEP supports regulations that 

achieve cost-effective, long-term, environmental benefits, but we remain concerned with the 

accelerated timeframes that EPA plans for implementation of these rules. We believe that the 

agency should give careful consideration to comments from the actual operators of the facilities 

affected by the rule, which have the first-hand knowledge and experience in designing and 

installing environmental retrofits. Our comments regarding the implementation and coordination 

of the schedule for the ELG and CCR rules provide more specific details concerning this issue, 

but additional coordination of implementation timelines should be considered for all of the 

pending regulatory actions that affect these sources.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0029-4

Organization1:Midwest Generation, LLC

Commenter1:

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 13.1

Comment Excerpt Text:

Midwest Gen appreciates that EPA outlined other Clean Air Act, Clean Water Act, and Resource 

Conservation and Recovery Act regulations facing the power sector in the preamble to its ELG 

proposal. [Footnote 4: See 78 Fed. Reg. at 34440-41.] Midwest Gen supports EPA’s 

acknowledgement of these concurrent requirements. All of the rules affecting the power sector 

overlap with each other, and all of the rules will have some impact on power sector reliability. 

Midwest Gen encourages EPA to take into account the direct effect each rule has on available 

capital and labor resources, with many of the rules individually running into the hundreds of 

millions of dollars in compliance costs. The impact of these multiple regulations is particularly 

problematic for merchant producers like Midwest Gen who cannot finance the compliance costs 

over the same lengths of time allowed to regulated utilities and cannot pass these costs along to 

rate-payers, as regulated utilities do.

Executive Order 13563 directs EPA to “tailor its regulations to impose the least burden on 

society, consistent with obtaining regulatory objectives, taking into account, among other things, 

and to the extent practicable, the costs of cumulative regulations.” [Footnote 5: See 76 Fed. Reg. 

at 3821.]As EPA moves forward with the ELGs and the other rules affecting the power sector, 

Midwest Gen encourages EPA to perform a cumulative cost-benefit analysis on all of the rules, 

including reliability standards, affecting the electric power industry. By cumulatively evaluating 
583

the costs, the timing, and the impacts on reliability of implementation of the various rules 

affecting the power sector, EPA can reduce compliance costs where there are synergies, 

streamline the regulatory process, ensure system reliability, and provide greater certainty for the 

regulated industry.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0054-8

Organization1:Earthjustice

Commenter1:

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

XV. EPA’S INTEGRATION OF THE ELG AND CCR RULES MUST CONSIDER THE 

NATURE AND SCOPE OF THE RISKS POSED BY COAL COMBUSTION RESIDUALS TO 

HUMAN HEALTH AND THE ENVIRONMENT.

EPA’s efforts to “align” the proposed ELG and CCR rules make consider the distinct and 

significant risks posed by each pollution source. Use of data from the 2010 ELG surveys can 

enhance understanding of the risks posed by coal ash, but there is also a danger that the data will 

be misused. In fact, EPA’s proposed use of several data sets is likely to underestimate 

significantly the risk to human health and the environment from improperly managed coal ash. 

Further, EPA appears in this proposed rule and in the coal ash Notice of Availability that 

preceded it, to be ignoring ELG survey data that show distinctly increased risk from coal ash. 

The desired “alignment” of the rules must not take precedence over the goal of protecting health 

and the environment from all risks posed by power plant wastes.

A. FOREMOST EPA MUST ENSURE THAT THE ELG AND CCR RULES FULFILL THE 

MANDATES OF THE CLEAN WATER ACT AND THE RESOURCE CONSERVATION 

AND RECOVERY ACT.

In the preamble to the proposed ELG rule, EPA acknowledged the intersection between the CCR 

and ELG rules and expressed the need to “align and structure” the CCR rule to account for any 

final requirements adopted under the ELG rule. [Footnote 851: 78 Fed. Reg. at 34,441.] 

According to EPA, the Agency’s goal in the dual rulemaking process is “to ensure that the two 

rules work together to effectively address the discharge of pollutants from steam electric 

generating facilities and the human health and environmental risks associated with the disposal 

of CCRs, without creating avoidable or unnecessary burdens.” [Footnote 852: Id.] First and 

foremost, EPA emphasized, the agency must fulfill its statutory mandate to restore and maintain 

water quality under the CWA and to protect human health and the environment under RCRA.” 

[Footnote 853: Id.]
584

To that end, EPA proposed two primary means of integrating the ELG and CCR rules:

(1) through coordinating the design of any final substantive CCR [sic] regulatory requirements 

[with ELG requirements], and (2) through coordination of the timing and implementation of final 

rule requirements to provide facilities with a reasonable timeline for implementation that allows 

for coordinated planning and protects electricity reliability for consumers. [Footnote 854: 78 Fed. 

Reg. at 34,442.]

Thus the first method of integration involves the design and substance of the requirements, and 

the second involves coordinating their timing. Under both means of “alignment,” EPA must 

consider the risks specific to CCR and fulfill its duty to protect health and the environment under 

RCRA.

In implementing this two-tiered approach, however, EPA strayed from its statutory mandate. 

First, the Agency suggested that data gathered for the ELG rulemaking may necessitate 

significant revision of the draft CCR risk assessment and risk screening analysis for fugitive 

dust. [Footnote 855: Id.] However, as explained below, EPA’s proposed arbitrary use of data 

collected for the ELG rule would result in the gross underestimation of risk from CCRs. Second, 

in the guise of promoting coordinated timing and implementation, EPA failed to properly 

consider the risks posed by CCRs and the need to require timely compliance at high risk 

facilities.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0056-9

Organization1:Utility Water Act Group

Commenter1:Elizabeth E. Aldridge

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

XXXVI. Cumulative Impacts Weigh Against EPA’s Expensive BAT Options

The steam electric industry faces a host of rigorous new requirements: several Clean

Air Act regulations, the CCR rule, and the § 316(b) intake structure rule. EPA needs to

evaluate the cumulative impact of these regulations as part of its assessment of the proposed

effluent guidelines rule. OMB guidance and Executive Order 13563 require EPA to consider

the cumulative effects of regulations and seek to reduce overlapping and inconsistent

requirements.

In particular, Executive Order 13563 directs agencies to take into account “to the extent

practicable, the costs of cumulative regulations”
585

(http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866/eo13563_01182011.pdf).

A memorandum for the heads of executive departments and agencies, issued March 20, 2012,

by the Administrator of the Office of Regulation and Regulatory Affairs, directs that, so far as

the law allows, “agencies should take active steps to take account of the cumulative effects of

new and existing rules and to identify opportunities to harmonize and streamline multiple

rules.” http://www.whitehouse.gov/sites/default/files/omb/assets/inforeg/cumulativeeffectsguidance.

pdf. Where appropriate and feasible, agencies should consider cumulative effects and

opportunities for regulatory harmonization as part of their analysis of particular rules, and

should carefully assess the appropriate content and timing of rules in light of those effects and

opportunities. Also, the memorandum reminds agencies that they should choose regulatory

approaches that “maximize net benefits.”

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2013-0209-0058-1

Organization1:Missouri Joint Municipal Electric Utility Commission (MPUA)

Commenter1:

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 13.1

Comment Excerpt Text:

In particular, Executive Order 13563 directs agencies to take into account “to the extent 

practicable, the costs of cumulative regulations.” A memorandum for the heads of executive 

departments and agencies, issued March 20, 2012, by the Administrator of the Office of 

Regulation and Regulatory Affairs, directs that, so far as the law allows, “agencies should take 

active steps to take account of the cumulative effects of new and existing rules and to identify 

opportunities to harmonize and streamline multiple rules.” Where appropriate and feasible, 

agencies should consider cumulative effects and opportunities for regulatory harmonization as 

part of their analysis of particular rules, and should carefully assess the appropriate content and 

timing of rules in light of those effects and opportunities. Also, the memorandum reminds 

agencies that they should choose regulatory approaches that “maximize net benefits.”

The electric generation industry, including public power or community-owned utilities, face a 

host of rigorous new requirements including several Clean Air Act (CAA) regulations, the Coal 

Combustion Residuals rule (CCR), and the Clean Water Act (CWA) § 316(b) intake aquatic 

protection fine structure rule (expected by November 2013) and the CO2 regulations for new and 

existing power plants. The Environmental Protection Agency (EPA) needs to evaluate the 

cumulative impact of these regulations as part of its assessment of the proposed effluent 

guidelines rule. The Office of Management and Budget (OMB) guidance and Executive Order 

13563 require EPA to consider the cumulative effects of regulations and seek to reduce 

overlapping and inconsistent requirements.
586

Response: The Agency acknowledges and appreciates the comment.

Section 3.7.6 - Financial assurance (35183)

Total Number of Submissions: 13

Total Number of Comments: 14

Comment Number: EPA-HQ-RCRA-2009-0640-03707-5

Organization1:Green Century Capital Management

Commenter1: Kristina Curtis

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.1

Comment Excerpt Text:

The financial assurance requirement allows shareholders to better assess this sector’s risk profile. 

Beyond the TVA spill, the disastrous oil well blowout in the Gulf of Mexico demonstrates that 

unforeseen accidents can occur that create unpredictably large environmental and financial risk 

for energy companies. We believe it is critical that utilities be required to assure shareholders and 

the public that they are financially prepared to manage the costs associated with a catastrophic 

coal ash spill or other ash-related events that could require significant clean up costs. Without 

financial assurance, shareholders have no way of assessing which companies in the sector 

represent a more secure investment.

In response to the TVA spill, several investors filed shareholder proposals at utility companies 

asking those companies to publicly report on efforts being undertaken to reduce environmental 

and health hazards and financial risks associated with coal ash storage and disposal. These 

proposals garnered significant shareholder support, including a 41% vote at MDU Resources Inc. 

and a 43% vote at CMS Energy. The high votes on these resolutions demonstrate that many 

shareholders view the coal ash issue as materially relevant to their investments.

We believe regulations that hold companies accountable to federally-enforceable standards for 

safe storage and disposal of coal ash will present meaningful and worthwhile long-term benefits 

to our investments, to our economy and to our environment.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements, as discussed in the proposed rule, subtitle D option, were not 

proposed and would be addressed separately in a different action and possibly under CERCLA 

authority. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06280-35

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel
587

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.2

Comment Excerpt Text:

The Department requests that EPA clarify the interaction of fmancial assurance requirements 

under Subtitle C and potential impacts to requirements under CERCLA 108(b). Do CERCLA

108(b) requirements supersede RCRA Subtitle C requirements? Will States implement CERCLA 

108(b) financial assurance requirements?

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-60

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9

Comment Excerpt Text:

Regardless of the instrument or avenue for financial assurance, it is essential that the financial 

assurance remain in effect into perpetuity as that is the period during which the disposed CCRs 

pose potential threats to human health and the environment.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06400-13

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.5.2.2

Comment Excerpt Text:
588

Transition rule (CCR Proposal at 35177): EPA states that it is departing from precedent and 

requiring disposal units that cease receiving new listed or characteristic wastes prior to the 

effective date of this rule to nevertheless comply with the new requirements. Since Superfund 

exists precisely in order to address hazards posed by practices that predate new regulations, there 

is no need to depart from established practice with transition rules, which fairly give the 

regulated community due process to modify activities when new obligations are created. There is 

no suggestion that the affected utilities are bankrupt and unable to assume remedial action if 

needed. Protection will be assured and regulatory precedent respected if EPA provides for CCR 

units the same transition rule afforded MSW landfills. For facilities that continue to operate after 

the effective date of the rule, expansions and new CCR cells should employ the new liner 

requirements. Groundwater monitoring will assure that existing units without the new liners do 

not adversely impact surrounding properties and resources.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-11

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1

Comment Excerpt Text:

Financial assurance is needed for the continued maintenance of the facility during and after 

operations. Maintenance would be needed to maintain infrastructure integrity. The facility would 

also need financial assurance for continued environmental monitoring. Other options besides 

retrofitting can be used to mitigate environmental issues that may arise during or after facility 

operations. Financial assurance would need to be substantial enough to implement mitigation 

measures effectively to resolve any environmental issues.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-64

Organization1:

Commenter1: Anonymous
589

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1

Comment Excerpt Text:

Financial assurance is needed by any facility regardless of the regulatory approach. Maintenance 

will continue to be needed at facilities after closure.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06808-12

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.3

Comment Excerpt Text:

Regulation under RCRA Subtitle C is more desirable because it gives New Mexico a stronger 

role and more authority to assure that CCRs are properly managed and that any existing 

contamination is cleaned up. NMED has demonstrated that it has a strong Subtitle C program, 

especially as it relates to operating permits and corrective action, as shown by its oversight of 

Los Alamos National Laboratory, Sandia National Laboratory, and Kirtland Air Force Base. In 

addition, Subtitle C financial assurance requirements will help ensure that New Mexico is not 

left paying for cleanup, closure, and post-closure care of the CCR units should the owners decide 

to close the facilities prior to completing their regulatory requirements. 

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06852-10

Organization1:Green Delaware

Commenter1: Alan Muller
590

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9

Comment Excerpt Text:

Financial Assurance 

Is inherently required under Subtitle C but not under D.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-06876-6

Organization1:Tennessee Riverkeeper, Inc.

Commenter1: David Whiteside

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.4 3.7.4 3.7.5 3.4.1.4 10.4.1

Comment Excerpt Text:

The advantages of regulating CCRs under Subtitle C are many. Enforcement is by the state and 

federal government, not merely by citizen suits. Corrective action as well as closure are 

monitored by authorized states and EPA, rather than being “self-implementing.” Appropriate 

financial assurances are imposed; permits are required; storage requirements are mandated. Most 

significantly, the use of surface impoundments to store CCRs will be phased out, ending this 

huge risk to public health and the environment. The beneficial use of encapsulated CCRs can and 

will continue. Any “stigma” about the continued safe and appropriate use of CCRs can be 

countered by EPA, the relevant industries and by public information campaigns. In fact, with the 

“wet” storage of CCRs discontinued, there will be increased opportunities for the beneficial use 

of CCRs. 

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-08259-2

Organization1:Minnesota Center for Environmental Advocacy (MCEA)

Commenter1: Emily Deering on behalf of Elizabeth Goodpastor
591

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6.2

Comment Excerpt Text:

In addition one key advantage of the Subtitle C regulatory system. is the financial assurance 

requirement. When a utility decommissions a coal-fired power plant -, and the facility stops 

producing revenue, the utility will likely face a long tail of landfill and impoundment site closure 

and post-closure costs that it will have a strong incentive to avoid. With adequate financial 

assurance in place, however, the incentives are realigned in a positive way: Instead of facing 

nothing but· deadweight costs, utilities get money back –they gain revenue -by doing what is 

right for the environment and by doing it in a cost-effective way. At the same time, taxpayers are 

assured that they will not get stuck with the bill or face the , risk of long-term environmental 

degradation. 

MCEA does believe Subtitle C's financial assurance rules need updating. The last ten years have 

shown that balance sheets are easily manipulated and strong companies can go bankrupt virtually 

overnight, casting serious doubt about "financial tests" or corporate guarantees as adequate 

financial assurance mechanisms. Nevertheless, MCEA's strong view is that financial assurance is 

a critical component of any effective coal ash regulation and' an important reason why Subtitle. 

C's approach is the right one for EPA to choose.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-08261-4

Organization1:Black Warrior Riverkeeper, Inc.

Commenter1: Eva Dillard

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2 3.6 3.7.5 3.7.3 3.4.1.4 3.1.1

Comment Excerpt Text:

2.As Hazardous Waste, CCRs should be regulated under Subtitle C of RCRA. 

The advantages of regulating CCRs under Subtitle C are many. Enforcement is by the state and 

federal government, not merely by citizen suits. Corrective action as well as closure are 

monitored by authorized states and EPA, rather than being “self-implementing.” Appropriate 

financial assurances are imposed; permits are required; storage requirements are mandated. Most 
592

significantly, the use of surface impoundments to store CCRs will be phased out, ending this 

huge risk to public health and the environment.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-08787-22

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.3.1

Comment Excerpt Text:

If the Subtitle C option is selected, there would be more than 495 additional facilities requiring 

hazardous waste permits covering active CCR management and disposal, post-closure care, and 

facility-wide corrective action. Each of these permits would be subject to financial assurance 

requirements for closure, post-closure, liability, and corrective action. Review of the 

documentation that facilities must provide to demonstrate compliance would require 

considerable staff effort on the part of States, as would the day-to-day tracking of the permit 

holders' financial instruments to verify continued compliance. The sudden increase in the number 

of facilities required to obtain financial assurance could also have the secondary effect of driving 

up the cost of financial instruments for currently permitted facilities, since there would be a spike 

in demand for letters of credit, insurance, bonds and other acceptable instruments. There is also 

concern that, given the current condition of financial markets, adequate financial assurance 

through third parties may simply not be available at a reasonable cost to meet the increased 

demand.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-08861-4

Organization1:Inter-Tribal Council of Michigan Inc.

Commenter1: Robin Clark

Commenter Type: Tribal Government

Classification: Substantive

Comment Category:
593

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.4 4.2.4

Comment Excerpt Text:

Risks associated with CCRs necessitate state and federal permit programs that include 

monitoring, recordkeeping, enforcement, and financial assurance, as required in Subtitle C. 

Subtitle C requires facilities to clean up releases of wastes or constituents at the facility and 

beyond its borders, and demonstrate financial assurance for any obligations or liabilities. Subtitle 

D's approach of allowing industry to conduct self-governed monitoring and corrective action, 

and leaving enforcement up to citizens and interest groups, is both inadequate and ill-advised.

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-09808-1

Organization1:Wyoming Outdoor Council

Commenter1: Bruce Pendery

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 3.6 3.7.5 3.2 3.5.2

Comment Excerpt Text:

In the proposed rule, 75 Fed. Reg. 35,128 (June 21, 2010), the EPA says that it is considering 

two options, for the regulation of CCRs, one proposing to regulate these industrial byproducts as 

special wastes under subtitle C of the Resource Conservation and Recovery Act (RCRA); and the 

other proposing to regulate CCRs under subtitle D of RCRA through the issuance of national 

minimum criteria. The Wyoming Outdoor Council supports regulation of these dangerous wastes 

under subtitle C of RCRA, and urges the EPA to adopt this regulatory approach in its final rule.-

Regulation under subtitle C will provide greater assurance that the substantial threats to the 

environment and public health posed by CCRs will be carefully regulated through a permitting 

process with the added benefits that enforcement and corrective actions will, be more certain. 

Regulation under subtitle C will create a comprehensive program of federally enforceable 

requirements for waste management and disposal. Regulation under subtitle D only allows EPA 

to set performance standards for-waste management facilities, which as EPA acknowledges are 

narrower, in scope and would be enforced primarily by those states that choose to adopt coal ash 

management programs. The Subtitle C option would require the development of state or federal 

permit programs, would allow for direct federal enforcement and would, include related storage, 

manifest, transport, and disposal requirements and mechanisms for corrective action and 

financial responsibility assurance. The subtitle D proposal would not be federally enforceable 

(although citizen’s suits could be filed) and it would not establish the more comprehensive 

management requirements for CCRs destined for disposal.
594

Response: The Agency acknowledges and appreciates the comment, however financial 

assurance requirements were not proposed under the subtitle D option and are not being 

promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Section 3.7.6.1 - EPA seeks comment on how FA requirements might apply to SIs that cease 

receiving CCRs before effective date of rule (35224)

No comments are associated with this issue.

Section 3.7.6.2 - EPA seeks comment on whether a financial test similar to that in 40 CFR 

258.74(f) in Criteria for MSWLFs should be established for local governments that own 

and operate coal-fired power plants (35183, 35224)

Total Number of Submissions: 3

Total Number of Comments: 3

Comment Number: EPA-HQ-RCRA-2009-0640-06260-96

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.3

Comment Excerpt Text:

Kentucky has a special waste regulation, at 401 KAR 45:080, that includes coal combustion ash, 

addressing the situation:

"Section 9. Financial Assurance for Publicly Owned Facilities. The owner or operator of a 

publicly owned facility shall provide a budget for the permitting, construction, operation, 

closure, and postclosure care of the facility. The budget shall be revised and submitted annually. 

When elements of the facility's permitting, construction, operation, closure, or postclosure care 

are to be accomplished by contract or agreement, a copy of the contract or agreement shall be 

submitted to the cabinet."

Otherwise, Kentucky could use the municipal financial test.

Response: The Agency acknowledges and appreciates the comment, however the Agency is 

promulgating a subtitle D rule and this comment is no longer relevant. . 

Comment Number: EPA-HQ-RCRA-2009-0640-06410-49

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive
595

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As with any electric utility, costs increase upon the facility will be reflected down to the 

ratepayer. See Comment #8 for further details on financial assurance of facilities. Establishing 

additional criteria for financial assurance should be based on site-specific characteristics.

Response: The Agency acknowledges and appreciates the comment, however the Agency is 

promulgating a subtitle D rule and this comment is no longer relevant.

Comment Number: EPA-HQ-RCRA-2009-0640-08259-2

Organization1:Minnesota Center for Environmental Advocacy (MCEA)

Commenter1: Emily Deering on behalf of Elizabeth Goodpastor

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

In addition one key advantage of the Subtitle C regulatory system. is the financial assurance 

requirement. When a utility decommissions a coal-fired power plant -, and the facility stops 

producing revenue, the utility will likely face a long tail of landfill and impoundment site closure 

and post-closure costs that it will have a strong incentive to avoid. With adequate financial 

assurance in place, however, the incentives are realigned in a positive way: Instead of facing 

nothing but· deadweight costs, utilities get money back –they gain revenue -by doing what is 

right for the environment and by doing it in a cost-effective way. At the same time, taxpayers are 

assured that they will not get stuck with the bill or face the , risk of long-term environmental 

degradation. 

MCEA does believe Subtitle C's financial assurance rules need updating. The last ten years have 

shown that balance sheets are easily manipulated and strong companies can go bankrupt virtually 

overnight, casting serious doubt about "financial tests" or corporate guarantees as adequate 

financial assurance mechanisms. Nevertheless, MCEA's strong view is that financial assurance is 

a critical component of any effective coal ash regulation and' an important reason why Subtitle. 

C's approach is the right one for EPA to choose.

Response: The Agency acknowledges and appreciates the comment, however the Agency is 

promulgating a subtitle D rule and this comment is no longer relevant.

Section 4.2 - Implementation and Enforcement of Proposed Subtitle D Regulations (35211)

Total Number of Submissions: 4

Total Number of Comments: 5
596

Comment Number: EPA-HQ-RCRA-2009-0640-06398-97

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Having a Subtitle D program that can be administered and implemented by the states is of critical 

importance. Without it, the regulated community could be subject to multiple and potentially 

conflicting CCR regulations which would add to the cost of compliance but would provide no 

additional protection to human health or the environment. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-06422-25

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

RCRA Subtitle D also provides ample enforcement authority to ensure compliance with CCR 

standards.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-06422-36

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

In closing, Dynegy supports the federal regulation of CCRs as non-hazardous waste. Subtitle D 

regulation, particularly the Subtitle D Prime approach, as implemented and enforced by the 
597

States and backstopped by EPA's broad enforcement authority under RCRA § 7003 , citizen 

suits, and enforcement authorities under other federal statutes, would protect human health and 

the environment without unduly burdening the economy and the coal-fired electricity generating 

industry, devastating CCR beneficial uses, or threatening jobs and electric reliability.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-06852-9

Organization1:Green Delaware

Commenter1: Alan Muller

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.4

Comment Excerpt Text:

Enforcement 

The opportunities for effective enforcement are much superior under Subtitle C

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: TRANS-DEN-0050-3

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Our third concern is that EPA's proposal discounts the important role that many states play 

today. Our states are very active in our landfill and pond operations, with programs that include 

permits and operating plans, inspections, and requirements for closure. State engineers and 

geologists and hydrologists are in the best position to implement such programs. 

To avoid duplication, we urge EPA to allow states with effective programs to continue to 

administer them under Subtitle D. Federal efforts should focus on a few states that may need 

improvement.
598

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented.

Section 4.2.1 - Citizen suits, including states acting as citizens and whether enforcement 

through citizen suits is adequate (35211)

Total Number of Submissions: 33

Total Number of Comments: 39

Comment Number: EPA-HQ-RCRA-2009-0640-00377-2

Organization1:Tennessee Clean Water Network (TCWN)

Commenter1: Renee V. Hoyos

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

Requiring states to establish guidelines under RCRA Subtitle D is inadequate. Subtitle D defines 

facilities which fail to follow guidelines as "open dumps," but gives citizens the right to enforce 

its provisions to prevent open dumps. However, relying on citizens to enforce such immense 

waste discharges is an insufficient approach. It will leave result in citizen efforts against the 

massive, well-funded energy industry instead of meeting the purpose of RCRA, which is to 

enforce regulations that prevent harm in the first place. It is crucially important regulations be 

adopted under RCRA Subtitle C instead.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-03303-8

Organization1:Unions for Jobs and the Environment (UJAE)

Commenter1: Bill Cunningham

Commenter Type: Union

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Although EPA would not directly enforce the requirements, states or citizens could enforce the 

requirements under RCRA citizen suit authority. The states could also enforce any state 

regulation under their independent state enforcement authority. We believe this would result in 

very effective regulation since citizens have shown no reluctance to challenge companies that 

they do not believe are responsibly following environmental regulations.
599

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-03934-7

Organization1:Kentuckians For The Commonwealth (KFTC)

Commenter1: Nancy L. Reinhart

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Further, the Subtitle D approach would require citizens sue to prove damages. This leaves 

citizens to fight for their lives against one of the richest national industries – an industry that can 

raise rates to pay for legal fees.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-06275-25

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

As EPA points out in the preamble to the Proposed CCR Rule, EPA lacks direct enforcement 

authority under the Subtitle D option. Accordingly, EPA’s Subtitle D option proposes an 

awkward system of CCR landfill location, design and operating requirements that would be 

enforced through citizen suits based on information posted to internet web pages. The cost of 

developing and maintaining this web-based information tracking system will be significant and 

will almost certainly be passed on to CCR generators. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 
600

Comment Number: EPA-HQ-RCRA-2009-0640-06280-17

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

Making the proposed Subtitle D regulation self-implementing, and placing the state in the role of 

a citizen enforcer under citizen suit provisions of RCRA 7002 is an untenable position for those 

states that already have a robust solid waste management program. By EPA's own statement, 

under the proposed Subtitle D regulation, "facilities can comply without interaction with a 

regulatory agency." Yet, these same facilities must already interact with the Department on 

permit applications, consistency reviews, operating and design requirements, groundwater 

monitoring, closure and post-closure requirements, and financial assurance. To attempt to parse 

through the federal requirements and treat them separately from the state's program is 

unworkable for industry as well as the Department. There will be state requirements that are in 

conflict with, in addition to, or separate from the federal requirements. The Department cannot 

be placed in a position whereby it seeks to enforce compliance with its state requirements 

through the administrative enforcement process while at the same time proceeding to enforce 

similar or overlapping requirements through the RCRA 7002 citizen suit provision.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-06280-8

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.4

Comment Excerpt Text:

The Department's public participation and public notice requirements are far more effective in 

engaging the community than the proposed "citizen suit" provisions in the proposed Subtitle D 

regulation. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 
601

Comment Number: EPA-HQ-RCRA-2009-0640-06313-83

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.1 3.2.2 4.2.2

Comment Excerpt Text:

It is unreasonable to expect that citizens and State regulators will be able to assure that CCRs are 

being disposed of in such a way that they will not result in releases which will impact Human 

Health and the Environment. 

State regulatory agencies have historically been under-funded, under-staffed, and under the 

influence of pressure from legislators and lobbyists for the industries they regulate. The coal 

combustion industry has ties to and influence over legislators and regulatory agencies that citizen

groups are not capable of establishing or maintaining. Thus, in order to obtain effective, uniform 

enforcement, the regulations must be done under Subtitle C. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-06422-27

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In addition, the citizen suit provisions of RCRA § 7002 enable any person, including states, to 

bring a civil enforcement action against any facility alleged to be in violation of Subtitle D 

requirements. To facilitate such citizen suits, the Proposed CCR Rule would require extensive 

public notifications and release of CCR facility inspection and monitoring data, as well as 

certifications by qualified professional engineers. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 
602

Comment Number: EPA-HQ-RCRA-2009-0640-06849-16

Organization1:Little Village Environmental Justice Organization (LVEJO)

Commenter1: Keith Harley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In undertaking this analysis, LVEJO urges U.S. EPA to include one very practical effect of 

Subtitle C versus Subtitle D regulation of CCR. Under Subtitle D, the basic enforcement 

mechanism to address non-compliance is a RCRA citizen suit. Shifting the burden of 

enforcement to small community-based organizations like LVEJO suggests Subtitle D will be, as 

a practical matter, unenforced in thousands of neighborhoods where environmental legal and 

technical services are unavailable or difficult to obtain. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-07395-18

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. EPA Should Not Rely Upon Citizen Suit Enforcement of Subtitle D Regulations as a 

Regulatory Underpinning of this Rule

EPA has proposed rigorous internet disclosure requirements and citizen suits as a means to 

enforce the Subtitle D regulations. Again, EPA's foundation for relying on citizen suits is on the 

belief that state programs are inadequate and EPA does not have authority to require the states to 

implement a Subtitle D program. While the TCCPC believes this has been disproven above, the 

TCCPC must still comment on the current option emphasizing citizen suits.

Fundamentally, lawsuits are not an effective means of regulation. First, lawsuits are reactive, not 

proactive. The TCCPC believes it is clear that the coal-fired electric generation industry has 

taken proactive measures to handling and disposing of CCRs. More importantly, the risk of 

lawsuits, for even perceived and unproven iolation would be crippling. Smart proactive 

regulation, enforced by state regulators who are familiar with the regulated industries, is the only 

way to effectively and efficiently regulate industry
603

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented. 

Comment Number: EPA-HQ-RCRA-2009-0640-08211-21

Organization1:North Dakota Department of Health

Commenter1: L. David Glatt

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3 4.2.5

Comment Excerpt Text:

The NDDoH believes that the whole crux of the selection of the Subtitle C or D options comes 

down to enforcement. Will direct enforcement authority by EPA be absolutely necessary, or will 

enforcement by states and citizens be adequately protective? The majority of states have 

applicable solid waste regulations that can be enforced by the state. 

In the states that do not have regulations regarding CCRs, the imminent hazard enforcement 

authority currently included in RCRA provides EPA with a mechanism for enforcement short of 

creating a new set of regulations for CCRs under Subtitle C. An EPA enforcement training 

document, found online at www.epa. gov/osw/inforesources/pubs/hotline/training/enforc.pdf, 

states the following: 

"Section 7003 gives EPA a broad and powerful enforcement tool to use in abating imminent 

hazards caused by hazardous or solid wastes. RCRA §7003 states that upon receipt of evidence 

that the past or present handling, storage, treatment, transportation, or disposal of any solid waste 

or hazardous waste may present imminent and substantial endangerment to human health or the 

environment, EPA may bring suit against any person who has contributed or who is contributing 

to the handling of the waste to restrain the person, order the person to take any action that may be 

necessary, or both. The action taken by EPA may be administrative or civil. To issue a §7003 

order, EPA must possess evidence that the waste handling may present an imminent and 

substantial endangerment to human health or the environment. Evidence may be documentary, 

testimonial, or physical and may be obtained from a variety of sources, including inspections, 

investigations, or requests for production of documents or other data pursuant to §§3007, 3013, 

or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 

§104. This evidence must be reliable enough to enable a reasonable person to conclude that the 

action is appropriate. The phrase "may present" indicates that the standard of proof does not 

require certainty. That is, an order may be issued if there is sound reason to believe that an 

endangerment exists; evidence of actual harm is not required." 

Therefore, by EPA's own assessment and interpretation of current RCRA rules, it is not 

necessary to implement the Subtitle C option for EPA to have direct enforcement authority for 

CCR damage cases.
604

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

enforced and implemented.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-23

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 4.2.4 4.5

Comment Excerpt Text:

Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing 

authority or seek appropriate authority to adopt rules for the U.S. EPA approval of state CCR 

permit programs modeled after the highly successful Title 40 Part 239: Requirements for State 

Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that 

states with U.S. EPA approved permit programs have direct state enforcement authority in 

addition to the citizen suit enforcement authority. It also clarifies that an owner or operator of a 

CCR disposal facility is not obligated to follow the RCRA subtitle D federal rules if that owner 

or operator has obtained and complies with an approved state issued CCR disposal facility 

permit. This avoidance of duplicative regulation is a significant “carrot” for both industry and 

state government to seek U.S. EPA state permit program approval. For over a decade (1999), this 

approach has successfully ensured state permitting of MSW landfills consistent with minimum 

national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast 

majority having obtained U.S. EPA approval of their state permit programs. It should be noted 

that this has been accomplished by states without the aid of any federal funding. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-24

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.3.1

Comment Excerpt Text:

The proposed RCRA subtitle D approach is appropriate to establish national minimum standards. 
605

The requirements are sufficiently clear and unambiguous. The requirements that owners or 

operators of CCR disposal facilities maintain independently reviewed documentation of 

compliance on publically available websites and provide notice to the state environmental 

agency ensures public access. These requirements establish a substantial basis for both citizens 

and those states without equivalent state requirements to successfully enforce under RCRA 

citizen suit authority. This is much improved over the existing 40 CFR part 257: Criteria for 

Classification of Solid Waste Disposal Facilities and Practices. Unlike the existing 40 CFR part 

257 requirements which are too ambiguous and don’t require the owner or operator to document 

compliance; the proposed RCRA subtitle D rules are actually useful towards developing a citizen 

suit. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-5

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 4.2.4 4.5

Comment Excerpt Text:

Ohio EPA acknowledges U.S. EPA and citizens' concerns regarding the reliance of RCRA 

subtitle D on citizen suit enforcement authority. Specifically, Ohio EPA urges U.S. EPA to 

reexamine the legal interpretation on existing enforcement authority to adopt rules for the U.S. 

EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 

239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 

approach would ensure that states with U.S. EPA approved permit programs have direct state 

enforcement authority in addition to citizen suit enforcement authority. It also clarifies that an 

owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D 

federal rules if that owner or operator has obtained and complies with an approved state issued 

CCR disposal facility permit. This avoidance of duplicative regulation is a significant "carrot" 

for both industry and state government to seek U.S. EPA state permit program approval. For over 

a decade (1999), this approach has successfully ensured state permitting and state enforcement 

authority for MSW landfills consistent with minimum national standards. This Title 40 Part 239 

approach is widely accepted by the states with the vast majority having obtained U.S. EPA 

approval of their state permit programs. I note that this has been accomplished by states without 

the aid of any federal funding.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.
606

Comment Number: EPA-HQ-RCRA-2009-0640-08226-6

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.3.1

Comment Excerpt Text:

If the authority to approve state CCR disposal facility permitting programs is not possible, Ohio 

EPA notes that the proposed RCRA subtitle D requirements are clear and unambiguous. The 

requirements that owners or operators of CCR disposal facilities maintain independently 

reviewed documentation of compliance on publically available web sites and provide notice to 

the state environmental agency ensures public access. These requirements establish a substantial 

basis for both citizens and those states without equivalent state requirements to successfully 

enforce under RCRA citizen suit authority. This is much improved over the existing 40 CFR part 

257: Criteria for Classification of Solid Waste Disposal Facilities and Practices. Unlike the 

existing 40 CFR part 257 requirements, which are too ambiguous and don't require the owner or 

operator to document compliance, the proposed RCRA subtitle D rules are actually useful 

towards developing a citizen suit. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-08787-32

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

EPA's proposal raises concerns regarding the reliance of RCRA Subtitle D on citizen suit 

enforcement authority given that States are not required to adopt the federal minimum standards 

into State regulations. EPA's concerns should consider that a number of State programs already 

have enforceable State requirements that meet or exceed many of the proposed CCR federal 

minimum standards. Also, the history of 40 CFR part 257 demonstrates that many States would 

voluntarily establish compatible State regulations. Specific to a citizen suit under the CCR 

proposal, the proposed RCRA Subtitle D requirements are clear and unambiguous. The 

requirements that owners or operators of CCR disposal facilities maintain independently 
607

reviewed documentation of compliance on publically available web sites and provide notice to 

the State environmental agency ensures public access. These requirements establish a substantial 

basis for both citizens and those States without equivalent State requirements to successfully 

enforce under RCRA citizen suit authority. This is much improved over the existing 40 CFR part 

257 Criteria for Classification of Solid Waste Disposal Facilities and Practices. Unlike the 

existing 40 CFR part 257 requirements, which are too ambiguous and do not require the owner 

or operator to document compliance, the proposed RCRA Subtitle D rules are actually useful 

towards developing a citizen suit. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-09276-6

Organization1:National Concrete Masonry Association (NCMA)

Commenter1: Robert D. Thomas

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

e. Responsibility for Proper Handling and Use of Fly Ash is not Relieved under Subtitle D 

Regulation. Any waste disposal process can be abused. State and local jurisdictions will continue 

to regulate disposal sites, transportation and processing of waste materials, and public health. 

Citizens will still have the right to pursue lawsuits and other legal remedies for perceived or 

actual abuses. Past fly ash spills and endangerments do not rise to the level of requiring higher 

regulation than Subtitle D.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09281-14

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5

Comment Excerpt Text:

3. The federal enforcement authorities available under Subtitle C do not provide the only 

mechanism for assuring effective CCR program implementation. 

Exelon shares EPA’ s concern that the lack of federal enforcement authority could compromise 
608

Subtitle D enforcement. However, CCR facility operators have a number of other incentives to 

comply with Subtitle D regulations, including: (i) the possibility of state and thirdparty litigation 

(for both regulatory compliance and actual damages), especially with easily accessible 

compliance information open to public scrutiny; (ii) requirements of investors, lenders and 

insurers to comply with environmental requirements; [footnote 2: Investors and lenders typically 

condition capital investments and loans on environmental compliance. Refusing to agree to such 

a conirnitment could result in lack of funding. Similarly, environmental insurance policies 

invariably exclude damage claims arising from non-compliances from covered events] and (iii) 

typical corporate policies in this frequently-regulated industry sector which call for 

environmental compliance as a standard operating procedure. 

Moreover, EPA is not without any enforcement authority related to environmental damage 

associated with or resulting from CCR disposal. To the contrary, EPA has authority to ameliorate 

threats of immediate and substantial endangerment to health or the environment arising from the 

disposal of CCR under RCRA. See 42 U.S.C. § 6973. While this authority does not include the 

ability to address each and every minor instance of non-compliance with the regulatory 

requirements that would be imposed under Subtitle D, it allows the Agency to address significant 

instances of non-compliance that pose imminent and substantial threats to the public or the 

environment. Thus, EPA would still have an important role within the Subtitle D framework in 

protecting the public from waste management and disposal practices that pose a significant 

demonstrated health risk. 

EPA can also invoke enforcement authority under other relevant statutory programs. EPA can 

enforce violations of the clean Water Act under 33 U.S.C. § 1319 if CCR are improperly 

discharged to surface water or otherwise discharged in violation of an NPDES permit condition. 

As impoundments are frequently located near surface waters and often discharge to them 

pursuant to a state-issued NPDES permit, the potential for the clean Water Act to serve as an 

enforcement tool is far from academic. In addition, the Office of Surface Mining Reclamation 

and Enforcement may also be able to initiate an enforcement action if a state fails to take 

appropriate action if a beneficial use application of CCR in an active or abandoned mine leads to 

a violation of the Surface Mining control and Reclamation Act. See generally 30 U.S.C. § 1271.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-09633-11

Organization1:Waterkeeper Alliance

Commenter1:Scott Edwards

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
609

D. Regulation Under Subtitle D Would Be Against Public Policy 

In the preamble to the current proposed rule, EPA states that, under Subtitle D, regulation 

requirements could not be enforced by EPA but only through state or citizen suits. [Footnote 81: 

EPA Proposed Rule, p. 43] Given the hardship already borne by citizens that have had to deal 

with health risks, contaminated water sources, and/or environmental destruction due to the 

presence of coal ash in their communities, it would be highly unreasonable, and against public 

policy, for EPA to place the further burden of enforcement on them as well. It is EPA’s duty to 

make sure that “federal laws protecting human health and the environment are enforced fairly 

and effectively...[.]” [Footnote 82: EPA website, Our Mission and What We Do, available at: 

http://www.epa.gov/aboutepa/whatwedo.html] Citizen suits are a necessary supplement to 

making these laws work, but should not be the sole means of enforcement. In short, EPA cannot 

rely on the public citizens to do its job. 

Moreover, the fact that enforcement would most likely not occur until after the relevant damage 

had already been done also violates public policy. Communities deserve legal protection from 

this type of pollution before it happens, not just monetary damages afterwards, which often fail 

to fully compensate parties anyway. Otherwise, companies might be encouraged to “pay to 

pollute,” in situations where the cost of paying damages is less than the cost reform its practices. 

Federal enforcement of regulation requirements under Subtitle C will help to ensure a swift 

response to problems before they have a chance to get out of hand.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10167-4

Organization1:Northern Plains Resource Council

Commenter1: Ed Gulick

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 7.1 4.2.4

Comment Excerpt Text:

Need for regulation

As shown by the problems outline above, federal oversight of CCR's is long overdue. The 

Montana DEQ has not had the capacity or wherewithal to deal with CCR's. Citizen's suits are 

only somewhat effective in addressing monetary costs to individual landowners. But these suits 

have not addressed the root of the problem, which is the fact that the ponds are leaking in the 

first place. The industry is not interested in fixing the problem and is more focused on containing 

it. This amounts to a bandaid on a broken arm. More proactive, enforceable action is needed.

Subtitle D regulations would result in no change for the State of Montana, leaving our members 
610

in Colstrip to foot the bill. This approach has obviously not worked in the 30 years since Colstrip 

has been in operation, and it will not work for the future years. On the other hand, Subtitle C 

regulations would provide citizens with a handle to address and perhaps stop coal ash problems 

early on through federal enforcement and involvement. The phasing out of wet storage would be 

a huge step toward solving some of the problems in Colstrip. Additionally, the industry's claim 

about a "stigma" surrounding beneficial uses is unmerited. The rules are written specifically to 

exempt beneficial uses and, as indicated by the EPA's own studies, would increase approved 

beneficial uses. It is time for industry to stop passing on its costs to ranchers and other citizens 

living in Colstrip and other areas affected by CCR's.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10538-10

Organization1:

Commenter1:Raymond von Drehle 

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

Another problem with regulating coal ash and CCR as a non-hazardous waste is that the 

regulations would not be directly federally enforceable. State regulators are often unduly 

influenced by large public utilities and if the state fails to adopt and enforce adequate regulations 

the only viable way of protecting public health and the environment is through citizen suits, 

which is a wholly untenable way to regulate over 150 million tons of toxic ash in nearly 50 

states. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10602_DC-016-6

Organization1:Unions for Jobs and the Environment (UJAE)

Commenter1:Bill Cunningham

Commenter Type: Union

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
611

Comment Excerpt Text:

Although EPA would not directly enforce the requirements, states or citizens could enforce the 

requirements under RCRA citizen suit authority. The states could also enforce any state 

regulation under their independent state enforcement authority. We believe this would result in 

very effective regulation since citizens have shown no reluctance to challenge companies that 

they do not believe are responsibly following environmental regulations.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10684_DC-072-1

Organization1:Sierra Club

Commenter1:Margaret Hoerath

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 4.2.4

Comment Excerpt Text:

The status of coal ash regulation is a patchwork, unreliable system which varies state to state. 

This system does not adequately handle coal ash waste and often results in coal ash ponds that 

leak toxins. Subtitle C will change this, protecting public health. Federally enforceable standards, 

upheld by the EPA, are what we need. Citizen lawsuits, which are long, drawn out and hard for 

affected communities to afford, would be the only mode of enforcement under the weaker 

Subtitle D. Please support Subtitle C which will phase out coal ash ponds, and will effectively 

protect individual’s and communitie’s health and well-being.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-10734_DEN-046-1

Organization1:Colorado Interfaith Power and Light

Commenter1:Betty Goebel

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.3 3.1.1

Comment Excerpt Text:

In addition to concern about the environment, faith traditions also share a concern for the poor. 

Today I speak for the poor, who will surely be underrepresented here. The EPA's own data 

shows that over half of the coal ash storage locations are in areas which are predominantly low 

income. Low income areas have long been the dumping ground for toxic wastes and the poor 
612

have suffered disproportionately from related health hazards.

Subtitle D lacks any meaningful enforcement mechanism. The burden is on the citizen to bring 

suit when the industry doesn't adhere to recommended standards. This puts an unacceptable 

burden on low income victims of coal ash health problems. These are the people least likely to 

mount a serious challenge to the industry. Low income people are often less well-educated, have 

less access to PC and internet technology, less knowledge of how to access and interpret 

environmental data, and the least likely to have resources for a time consuming legal battle. 

When you are working two or three jobs to put food on the table, it is hard to muster the energy 

you need to organize an effective challenge to a powerful industry, even when you know that 

something is making you, your children and your neighbors sick.

If the industry is looking for a group of people least likely to challenge them, they have the right 

population when their storage sites are in low income areas. Many instances of contamination 

make it clear: This industry has been unable police itself and neither have state governments. I 

urge the EPA to adopt Subtitle C. If the industry truly believes that coal ash is non-hazardous, I 

suggest that it be trucked to the backyards of its executives. And may that give new meaning to 

the scriptural command to "love our neighbors."

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10747_DEN-059-2

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5

Comment Excerpt Text:

Opponents to the Subtitle D option persist on incorrectly stating that this would merely preserve 

the status quo under which EPA could only issue "guidance." This is not correct. Under the 

Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal 

units. These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision and violators would be subject to significant civil penalties. EPA would 

also retain its imminent and substantial endangerment authority to take action against any CCR 

units that posed a risk to human health or the environment. Ask any utility that has been the 

subject of a RCRA citizen suit, with injunctive relief and civil penalties in the balance, whether it 

views these regulations as mere "guidance." These are real regulations with teeth and it is 

misleading to suggest otherwise.
613

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10771_DA-002-3

Organization1:Dynegy Inc.

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 4.2.5 3.2.3

Comment Excerpt Text:

EPA's stated reason for favoring the Subtitle C hazardous approach is concern regarding 

enforcement capabilities. Yet federal regulation of CCRs as non-hazardous provides extensive 

enforcement avenues:

1. Most states already have robust regulatory programs that apply to CCR management. Many 

states are likely to adopt federal Subtitle D requirements. Even in the absence of a state program, 

CCR facilities must meet Subpart D requirements; they are not optional, unenforceable 

guidelines.

2. Under RCRA § 7002 any person, including States, can bring a civil enforcement action against 

any facility for violating any Subtitle D requirement. EPA is also proposing the extensive public 

release of CCR inspection and monitoring data to further enable this provision.

3. Under RCRA § 7003, EPA can also enforce Subtitle D requirements whenever a CCR facility 

"may present an imminent and substantial endangerment to health or the environment". The 

threshold for EPA to use this authority is low, as the Courts have interpreted RCRA § 7003 

broadly.

4. Finally, to ensure compliance of CCR operations, EPA also has separate enforcement 

authority under the federal Clean Water Act, as does the Office of Surface Mining under the 

federal Surface Mining Reclamation and Enforcement Act.

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-10771_DA-002-4

Organization1:Dynegy Inc.

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company
614

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.5

Comment Excerpt Text:

Dynegy supports the federal regulation of CCRs as nonhazardous waste. Subtitle D regulations 

implemented and enforced by the States- as backstopped by EPA's broad enforcement authority 

under RCRA § 7003, RCRA's citizen suit provisions, and authorities under the other federal 

statutes --would protect human health and the environment in a manner equivalent to Subtitle C 

regulation, but without unduly burdening the economy or threatening jobs and electric reliability.

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-11027_CHA-062-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Pat McCable

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.5.1 4.2.5

Comment Excerpt Text:

USWAG supports the "Subtitle D Prime" option, with appropriate adjustments, because of the 

options presented by EPA this is the one that best balances clean energy with affordability and 

reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures 

the safe disposal of CCRs; the "D Prime" option will meet this objective. 

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve 

the status quo under which EPA could only issue "guidance." This is not the case. Under a 

Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal 

units. These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision. EPA would also retain its imminent and substantial endangerment 

authority to take action against any CCR unit that posed a risk to human health or the 

environment.

We agree that disposal units that are not fully protective must either be upgraded or closed; 

however, there are many CCR surface impoundments which are perfectly safe. The "D Prime" 

option will allow for development of a regulatory program that meets both of these objectives. 

A major short-coming, however, of either proposed Subtitle D approach is the lack of a 

mechanism for the states to step in and administer the regulations. Clearly, there are state 

regulatory programs that already meet or exceed the proposed Subtitle D standards. States with 
615

qualified programs should be given the option of administering the federal Subtitle D rules if 

they so desire. 

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: EPA-HQ-RCRA-2009-0640-11284_CHI-058-1

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2 6.1.1 7.1.1 3.1.1

Comment Excerpt Text:

Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C 

with a comprehensive program with federally enforceable requirements, as a minimum 

requirement, not thru citizen suits that require deep pockets and bankruptcy. The coal industry 

outrageously brags that they meet the standards while contaminating drinking water in 

Wisconsin so that Caledonia requires bottled water. 

Since voluntary industry self-regulation is beyond failed, industry corporations must be held 

financially accountable for all external testing and costs and cleanup- not the individual victims 

of these unfair, unethical externalities of their costs of doing business. Subtitle C as a 

comprehensive program of federally enforceable requirements is the only acceptable option with 

some corporate accountability. If adequate enforcement occurs by [words illegible]. The long 

overdue precautionary principle must become part of this equation before any real accountability 

shifts to industry burdens and costs back to their source-instead of unfairly on victims. The 

Wisconsin DNR is politically driver agency. The public wants wind and solar- not coal. By 

definition, limited legal liability of coal in Wis. indicates serious hazards and risks [word 

illegible] for the public.

Coal ash concentrates arsenic, cadmium, and mercury. In Wisconsin, coal ash is dumped into 

gravel pits and spread on farm fields, which, in turn, leached into our ground water. 

Coal is not cheap. The costs are transferred to public through environmental pollution and 

adverse health effects. Innocent victims are harmed and absorb coal’s external uncounted costs 

of doing business. Subtitle D option is unacceptable as it further shifts the unfair costs of 

externalities to victims when it should be paid honestly as a cost of doing business. Industry must 

start paying 100% costs of doing business- not victims. 

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.
616

Comment Number: EPA-HQ-RCRA-2009-0640-11470_L-047-2

Organization1:

Commenter1:Rick Clewett

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2 7.1 8.9 3.1.1

Comment Excerpt Text:

Proposal D "would not require permits, nor could EPA enforce the requirements. Instead, states 

or citizens could enforce the requirements under RCRA citizen suit authority; the states could 

also enforce any state regulation under their independent state enforcement authority." Leaving 

the burden of initiating enforcement actions to state agencies and citizens would be an abrogation 

of EPA's duty to protect the environment and the public. I will use the findings of a justconducted study by the Sierra Club, Kentucky Waterways Alliance and Global Environmental to 

make this point. 

The study, entitled Slow Motion Spills: Coal Combustion Waste and Water in Kentucky, found

that while there are 44 coal ash ponds in Kentucky, anything like adequate information was 

available for only 8 sites. "Even for those 8 sites, Kentucky did not have monitoring records for 

all CCW contaminants. In some cases, the Division had even allowed sites whose early records 

showed dangerous levels of toxic heavy metals to stop monitoring for those pollutants." 

Despite this disturbing failure of the state to collect and archive adequate data on water quality 

near coal ash facilities, the study was able to reach three resounding conclusions: 

1. Existing data point to groundwater contamination caused by coal combustion waste beneath 

every plant ... studied. For many sites, contamination is intensifying as CCW continues to build 

up in ponds and landfills. 

2. Kentucky's regulatory program is not properly addressing this threat; instead, it's getting 

weaker. Even as evidence of contamination mounted in state files, Kentucky reduced monitoring 

requirements, failed to commence enforcement action, and continued to permit new ponds and 

landfills without proper controls. 

3. Kentucky is not comprehensively tracking where CCW contamination is going, putting offsite 

drinking water and communities at risk and allowing CCW discharges to enter our rivers and 

streams. Because heavy metals found in CCW waste are toxic in extremely low concentrations, 

and many of these metals accumulate over time, the combination of information gaps and leaky 

CCW sites is very dangerous.

I am sure the level of regulation of coal combustion waste is as bad or worse in some other 

states. I choose to highlight this study of Kentucky's failure to monitor its numerous coal ash 

ponds and dry fills adequately, let alone to protect its citizens from the damage being done to 

water quality by leaks from these sites, because the study is current and credible, based on the 

state's own records, and because I, my family, and many of my friends live here. It matters to us 

if Cane Run is endangering the wellbeing of people living in some neighborhoods in Louisville 
617

or if EKPC's Spurlock facility "discharges to three receiving streams that flow into the Ohio 

River" and that it has "contaminated underlying groundwater since at least 2005 with arsenic, 

iron, sulfate and IDS exceeding MCLs and SMCLs," with arsenic reaching "16 times the MCL in 

an off-site well 750 feet northeast of the landfill" 

This last statistic comes from a just-release study done by the Environmental Integrity Project, 

Earthjustice, and the Sierra Club and entitled" IN HARM'S WAY: Lack Of Federal Coal Ash 

Regulations Endangers Americans And Their Environment). This title says it all: strong federal 

regulation of coal combustion waste is essential to the wellbeing of the American people, and it 

is EPA's Subtitle C Proposal that will provide that regulation. Please put forward a strong, 

enforceable rule.

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: TRANS-ARL-0008-1

Organization1:

Commenter1:John Robertson

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

The industries that are speaking to you to ask for regulation under Subtitle D are able to afford 

hundreds of attorneys. They are able to afford millions of dollars. The citizens in Giles County 

are able to afford me. Citizen suits are going to be very difficult under Subtitle D. They will be 

outgunned, they will be outmanned, and they will likely be done in by the war of attrition. 

We would ask for Subtitle C to cover coal combustion waste because, as Mr. McGrath had 

indicated, the way that the Cumberland Park Project is currently structured is not a beneficial 

use, and it's something that the EPA has recognized under any regulation would not be 

recognized as a beneficial use. Unfortunately, the patchwork of regulation between the states 

would have one state regulating the type of project that Giles County has as a hazardous waste 

dump and requiring monitoring, permitting, lining; whereas in our neck of the woods, you have 

an unlined site next to a source of drinking water for communities that live downriver. That's 

something that should not be permitted to occur. 

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: TRANS-ARL-0008-3

Organization1:
618

Commenter1:John Robertson

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We believe that the only way that this problem can be controlled is by regulation under Subtitle 

C. It would be the only tool that citizens, like the citizens of Giles County, would be able to have 

as opposed to pooling their resources to hire one attorney as opposed to the industry that's able to 

afford an entire firm of attorneys. 

Response: The Agency acknowledges and appreciates the comment, the commenter is also 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced.

Comment Number: TRANS-CHI-0043-2

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 4.2.4

Comment Excerpt Text:

Given this reality, it is clear to me that the EPA should and must adopt the strongest possible 

regulations to contain the toxins in coal ash. To begin with, coal ash should be regulated from 

cradle to grave. Many of the conditions in Subtitle D are inappropriate for dealing with 

hazardous waste. Both logic and history argue that it is unrealistic to expect an industry to police 

itself. 

Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an 

effective counterbalance to industry power is unrealistic. While David and Goliath may be an 

appealing story, it's not a good model for ensuring the changes that are required to safeguard 

human and environmental health. For this reason, the regulations and the enforcement must 

come from the federal level. 

The current patchwork of state regulations are weak. Many states fail to require even basic 

safeguards such as adequate monitoring. State-based regulations and enforcement are also 

inappropriate because unless rules are changed, coal ash and coal ash polluted groundwater don't 

actually respect state boundaries. 

I want the environment in which I and my neighbors live to be cleaner and healthier. I want the 

environment that children inherit to be cleaner still. The EPA is the right agency to take the lead 

and I hope it will adopt provisions at least as strong and binding as those in Subtitle D with 

regard to coal ash. 
619

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to why the Agency has chosen to regulate CCR under subtitle D of RCRA.

Comment Number: TRANS-CHI-0065-1

Organization1:Peoria Families Against Toxic Waste

Commenter1:Joyce Harant

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

We do support the regulation by Subtitle C of your options. I have three points that I hope I will 

have time to make. When I read in your website the description for Subtitle D option regarding 

enforcement, Subtitle D enforcement through citizen suits, states can act as citizens. I had a quite 

visceral and negative reaction that I will not share with you this afternoon. The thought that my 

government who is proposing this regulation because it knows that coal ash is not currently 

being stored in a manner that protects the public's health and safety, that you would even offer us 

an option that we should rely on citizen suits to protect us is ludicrous. 

I'd like to ask you, have any of you been involved in trying to promote environmental safety as 

part of a grassroots citizens group? By the way, have you documented just where these citizen 

activists are located? Do we live in every location that needs monitoring? Do these regulations 

give us any authority to investigate access to funds to monitor sites, any funds to fight these 

wealthy corporations in court? I did not see that in the regulations. 

If you ever had to face these wealthy corporations in public hearings and could not afford the 

professional testimony that you need, you would never suggest citizen enforcement. Have you 

ever had to fight a wealthy corporation in court without having government attorneys on your 

side? Have you ever worked with seven other people for six hours at 90 degrees at a ball game 

selling hotdogs just to make $300 to pay your attorney? 

I am currently a plaintiff in a lawsuit in the Third Appellate District in Illinois regarding Electric 

Arc Furnace Test. I can tell you that when our single, poorly paid but dedicated attorney faced 

the five attorneys supporting the hazardous waste company, you know it's not a fair fight. So, I 

repeat, do not rely on citizen suits for enforcement. 

The idea of citizen enforcement is like "don't ask don't tell." Don't ask don't tell the coal ash 

producing companies because if there doesn't happen to be a well educated, informed and 

financed citizen activist in the community, we surely know that the wealthy corporations won't 

tell about their pollution. 

I would also like to express caution in how the coal ash is determined to be able to be used in a 

so-called safe manner. In Peoria, we have one of the highest lead contamination of homes and 

lead poisoning in children. And we need to make sure that any so-called safe use has thorough 

testing and long-term testing so that this is not coming out in dust into the water after demolition 

of homes or however it is used. 

And lastly, I believe we must have universal rules throughout this country to control coal ash 
620

waste. If I live in a progressive state, it really doesn't matter because the state next door can be 

inadequate and I'm still at risk

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.

Comment Number: TRANS-CHI-0110-1

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C 

with a comprehensive program with federally enforceable requirements as a minimum, not 

through citizen suits that require deep pockets and will bring bankruptcy to those citizens.

The coal industry outrageously brags they meet the standards while contaminating the drinking 

water in Wisconsin, so Caledonia has to have bottled water. Since voluntary industry selfregulation is beyond failed, industry corporations must be held financially accountable for all 

external cost including testing and cleanup, not paid by individual victims of these unfair, 

unethical externalities of their costs of doing business. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.

Comment Number: TRANS-CLT-0068-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Jennifer Rennick

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

My name is Jennifer Rennick, and I am the federal policy director for a regional nonprofit 
621

organization called the Southern Alliance for Clean Energy. I am also the mother of two young 

children, and I am a concerned citizen. And I'm very pleased to have the opportunity to speak 

today in support of the Subtitle C designation for coal ash under the Resource Conservation and 

Recovery Act. 

In my professional capacity, I track how our federal legislative and regulatory systems make and 

enforce laws in this country. And I've had the opportunity first hand to see time and time again 

why voluntary measures, such as those that would result from the Subtitle D option, simply do 

not work; particularly not when we're speaking about for-profit ventures. Unless this industry is 

required by law to follow particular guidelines, there is no guarantee that public health and safety 

will be assured. In fact, regulating coal ash, which, as we've heard several times today, contains, 

among other substances, lead, mercury, cadmium, chromium -- to regulate this in the same 

category as banana peels, soda cans and other household waste is truly unthinkable to me, 

particularly as a mother. 

And I don't believe that citizens should have to sue after the fact for compensation or 

remediation in the event of another coal ash disaster, such as what happened in Harriman, 

Tennessee in December of 2008. And I do believe the correct word there is "when" we have 

another coal ash disaster, and not "if." 

We should have the strongest public health protections from the start, and I believe that 

establishing the long overdue and robust standards that would result from a Subtitle C 

designation will help ensure that we have the best protections for our water, our air, and our 

children's future. I do not believe that environmental protection is a luxury as some utility 

spokespersons have suggested. I believe that these are fundamental rights and rights that we all 

have a shared responsibility to protect. 

And I trust and hope that the EPA is going to do the right thing at the conclusion of this hearing 

process and recommend a Subtitle D (sic) designation. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.

Comment Number: TRANS-DAL-0017-2

Organization1:Dynegy

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The EPA stated reason for favoring the Subtitle C hazardous approach is concern regarding 

enforcement capabilities, yet federal regulation of CCRs as non-hazardous provides extensive 

enforcement avenues. First, most states already have robust regulatory programs that apply to 

CCR management. Many states are likely to adopt Subtitle D requirements. Even in the absence 
622

of a state program, CCR facilities must meet Subtitle D requirements. They are not optional, 

unenforceable guidelines. 

Two, RCRA Section 7002 requires that any person, including states, can bring a civil 

enforcement action against any facility for violating any Subtitle D requirement. EPA has also 

proposed the extensive public release of CCR inspection and monitoring data to further enable 

this provision. 

Three, under RCRA 7003, EPA can also enforce Subtitle D requirements whenever a CCR 

facility may present an imminent and substantial danger to health or the environment. The 

threshold for EPA to abuse this authority is low as the courts have interpreted RCRA 7003 

broadly. 

And four, to ensure compliance of CCR operations, EPA also has separate enforcement authority 

under the federal Clean Water Act, as does the office of surface mining under the federal Surface 

Mining and Reclamation Enforcement Act. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.

Comment Number: TRANS-DEN-0030-1

Organization1:Colorado Interfaith Power and Light

Commenter1:Joy Jamison

Commenter Type: Community/Religious/Social Organization

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.3

Comment Excerpt Text:

This is a moral and eco-justice issue. Coal ash disproportionately affects the poor. Right here in 

Denver in the Elyria neighborhood next to Xcel's Cherokee plant, Xcel parks railroad cars full of 

coal ash right across the street from private housing.

According to the EPA's own statistics, 52 percent of coal ash sites have higher than average lowincome families and 28 percent have higher than average minority populations. If coal ash is not 

regulated, the only recourse for individuals in these communities is citizen suits. No one there 

can afford to sue.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.
623

Comment Number: TRANS-PIT-0074-2

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4 7.1

Comment Excerpt Text:

It is our understanding that the EPA has two proposed regulatory options for coal ash - Plan C 

and Plan D. Clean Water Action is supporting the Strong Option, Plan C, that would provide 

basic environmental and public health safeguards backed up with federal enforcement and 

financial accountability. We need protection from coal ash cradle to grave and the Subtitle C 

option gives us that. We do not support the status quo option that relies on citizen suits or 

possible state regulations for enforcement. 

Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price 

for that. Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma 

at four times the national rate. Flammable drinking water in peoples' homes. Leaving things to 

the state is not an option here in Pennsylvania. We are facing severe budgetary shortfalls and our 

DEP has been slashed to the bone. Our communities are facing serious environmental threats 

from the booming natural gas drilling industry. Our Department of Environmental Protection 

does not have the necessary resources to protect us from those dangers let alone do what is 

necessary to regulate coal ash. Clean Water Action supports strong federal regulations on coal 

ash. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.

Section 4.2.2 - State enforcement provisions are needed beyond citizen suits

Total Number of Submissions: 51

Total Number of Comments: 87

Comment Number: EPA-HQ-RCRA-2009-0640-00377-2

Organization1:Tennessee Clean Water Network (TCWN)

Commenter1: Renee V. Hoyos

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

Requiring states to establish guidelines under RCRA Subtitle D is inadequate. Subtitle D defines 

facilities which fail to follow guidelines as "open dumps," but gives citizens the right to enforce 
624

its provisions to prevent open dumps. However, relying on citizens to enforce such immense 

waste discharges is an insufficient approach. It will leave result in citizen efforts against the 

massive, well-funded energy industry instead of meeting the purpose of RCRA, which is to 

enforce regulations that prevent harm in the first place. It is crucially important regulations be 

adopted under RCRA Subtitle C instead.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion as to the methodology EPA used to determine that subtitle D of RCRA was 

appropriate for the regulation of CCR.

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

Organization1:

Commenter1:Chris Barnes

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 4.1.1

Comment Excerpt Text:

For example, Xcel Energy, one of the larger power corporations in the United States, already 

regulates their CCR distribution and waste management according to each state requirement 

where they fall (Xcel Energy website, 2010). Obviously this is just one example of many 

commercial and private providers, but it still drives home the main point. The states need to have 

their regulations on CCRs changed to ensure these accidents do not happen again. The second 

alternative also allows for additional regulations put on companies nationwide (for each state) to 

ensure their landfills and surface impoundments will not create disasters such as the one already 

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

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

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

been since CCRs were found to need regulation. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-05721-1

Organization1:Hodges, Harbin, Newberry & Tribble, Inc.

Commenter1: William F. Hodges

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.1 4.4.5.2.1 7.1.1.3 7.1.2.5 10.4.2
625

Comment Excerpt Text:

In response to, the request, for comments and as a Professional Engineer actively involved in 

CCR Disposal, I enclose the following: 

1 . EPA should select the Subtitle D option. Otherwise, a material that is in no way hazardous 

will be mis-characterized as hazardous waste. 

2 . Declaring this product a Subtitle C waste will bring the reuse market to a standstill due to the 

stigma EPA would be placing on the product as hazardous waste. 

3 . To safeguard public health, all Subtitle D criteria (both siting and design) should be required 

of the CCR. 

4. All future landfills receiving CCR must perform a complete stability evaluation by a 

professional engineer to assure no slope failures. Experience has proven that CCR behaves very 

differently than MSW or other waste types. 

5. States should be encouraged to amend their Subtitle D rules to incorporate CCR. Regulation of 

this activity should be handled by the states with oversight by EPA. 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-05906-3

Organization1:Associated Electric Cooperative, Inc. (AECI)

Commenter1: Brent Ross

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5

Comment Excerpt Text:

The State of Missouri Natural Resources Department regulates CCR waste disposal and 

maintains a rigorous compliance program tailored after the Federal Subtitle D regulatory 

framework. This regulatory program meets and even exceeds Subtitle D requirements and, 

therefore, should continue to administer the CCR disposal program should Subtitle D regulations 

be enacted.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06018-1

Organization1:Indiana Department of Environmental Management (IDEM)

Commenter1: Thomas W. Easterly
626

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The Environmental Protection Agency (EPA) draft rule offers two options for regulating disposal 

of CCRs: a RCRA Subtitle D approach (self-implemented), and a RCRA Subtitle C approach. 

IDEM carefully considered these two approaches in light of Indiana's current regulatory 

framework for CCRs that are regulated under its solid waste program. Based upon this review, 

Indiana is recommending that EPA obtain authorization from Congress to add and develop rules 

for CCR surface impoundments, disposal sites and reuse, with a full state program authorization, 

similar to the one developed for municipal solid waste landfills (MSWLFs) under 40 CFR Part 

258.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06128-16

Organization1:Owensboro Municipal Utilities

Commenter1: Kevin D. Frizzell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

There are modifications to Subtitle D Prime that OMU supports to ensure its requirements are 

monitored and enforced. Instead of allowing the Subtitle D option to be self-implemented and 

enforceable through RCRA's citizen suit provision, states should be allowed to enforce 

compliance through a traditional permitting system. This will ensure federal and state efforts are 

not duplicated. Clear standards need to be implemented under the Subtitle D Prime approach that 

all states can adopt and provide a more effective approach for the management of coal 

combustion residuals. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

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

Organization1:Mecklenburg County, North Carolina

Commenter1: Heidi Pruess

Commenter Type: Local Government
627

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.2 4.4.5.1 4.4.7

Comment Excerpt Text:

LUESA has reviewed the EPA proposed rules regarding the disposal of CCRs and supports the 

implementation of the subtitle D option with the following recommended requirements: 

o Existing surface impoundments should be required to install liners within 5 years or shut down. 

o New surface impoundments and landfills containing CCRs should be required to install liners. 

o Groundwater monitoring should be required for new and existing disposal units. Groundwater 

impacts should be grounds for site closure. 

o States should be required to submit to EPA for approval a framework for adequate enforcement 

of the new requirements. EPA’s support and guidance are critical. 

o EPA indicates that the contaminants of concern rarely exceed the RCRA hazardous waste 

toxicity characteristic, but mobility of metals such as arsenic have leached to levels of concern 

due to the large size of some disposal units. Therefore, a framework should be developed that 

regulates ash basin and storage/disposal unit size, ash volume being stored on site, and the 

duration of storage. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA. The commenter is 

further referred to Unit VI of the preamble for a discussion of the regulatory requirements. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-117

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The Commonwealth supports the regulation of coal combustion residuals under the authority of 

Subtitle D of RCRA. As stated in numerous comments in Part II: Major Issues section, Kentucky 

has a framework of regulations ready to be revised to control this product and contends that 

regulation under Subtitle D accomplishes the same level of protection using the requirements for 

lining and enhanced monitoring and the approach advocated in these comments address all 4 

points mentioned above. It should be noted that the catastrophic failure from breaches mentioned 
628

in (3) resulted in damage due to the physical characteristics of the CCR, rather than toxicity or 

hazardous characteristics. Those issues should be addressed through state dam safety programs 

and structural integrity processes. The process would be even more effective if EPA were to 

develop detailed, national regulations that states would be required to implement at a minimum 

and enforce. Regulation at the local and state level is the most effective method for dealing with 

this issue.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-22

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 7.4.1

Comment Excerpt Text:

EPA Funding and Support of State Programs

Even under Subtitle D, the department would be at a severe timing and funding disadvantage. In 

these challenging economic times, state general funding, which is the cornerstone of solid waste 

funding, adsorbs most of the agency cuts and is well below previous levels. EPA is proposing a 

self-certification process by independent professional engineers and geologists. This signals to 

some legislators that our agency should not be involved in the process, thus undercutting our 

legitimacy for agency funding requests during the biennium budget and fee process and affects 

our ability to provide oversight, which we feel is essential. Kentucky requests that the agency 

delay the effective date five years, require state adoption of national regulations and provide 

funding. Since this requires the EPA to request a revision to RCRA from Congress, we urge the 

agency to do so.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-69

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott
629

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The Commonwealth of Kentucky supports the regulation of coal combustion residuals under the 

authority of Subtitle D of RCRA. The proposed management methods and technology for the 

two proposals are identical. Enhanced monitoring, lining requirements, and publishing detailed 

national regulations that states would incorporate and enforce would accomplish the same goal 

of human health and environmental protection.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-8

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The following specific comments are provided by the Department for Environmental Protection 

and are provided to substantiate the Commonwealth position that the U.S. Environmental

Protection Agency should withdraw the current proposed rule and re-propose a single rule 

regulating coal combustion residuals (CCRs) under subtitle D with requirements for ponds and 

landfills, groundwater monitoring requirements, national standards that all states must adopt, and 

provide specific details on requirements for beneficial use. EPA has consistently viewed ash and 

CCR as high volume and low hazard materials. Regulation of CCRs is best handled at the local 

and state level with additional assurances that those regulations will be implemented and 

enforced by the states to ensure protection of human health and the environment.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06308-5

Organization1:NRG Energy Inc.
630

Commenter1:Verne Shortell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. The Subtitle D Program Should Include a Mechanism for State Implementation of the CCR 

Rules 

We request that EPA include a mechanism for qualified state programs to directly administer and 

enforce the Subtitle D CCR regulations and that all enforcement be the responsibility of the 

applicable state agencies. The EPA has proposed relying on citizen suits as a means to enforce 

the Subtitle D regulations. The burden of placing this responsibility on third party citizen suits 

and exposing facilities (and enforcing agencies) to direct citizen suit enforcement with no ability 

for states to intervene is concerning and problematic. Further, a facility could be subject to a 

citizen suit enforcement action in federal court and to a wholly separate enforcement action in 

state court for violation of the parallel state requirement. This is burdensome to all parties and 

could result in inconsistent federal and state court determinations with respect to an identical 

regulatory requirement. It also could result in duplicative federal and state penalties for 

essentially the same regulatory infraction.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-83

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.1 3.2.2 4.2.1

Comment Excerpt Text:

It is unreasonable to expect that citizens and State regulators will be able to assure that CCRs are 

being disposed of in such a way that they will not result in releases which will impact Human 

Health and the Environment. 

State regulatory agencies have historically been under-funded, under-staffed, and under the 

influence of pressure from legislators and lobbyists for the industries they regulate. The coal 

combustion industry has ties to and influence over legislators and regulatory agencies that citizen 

groups are not capable of establishing or maintaining. Thus, in order to obtain effective, uniform 

enforcement, the regulations must be done under Subtitle C. 
631

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06356-3

Organization1:U.S. Chamber of Commerce

Commenter1: William L. Kovacs

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. EPA Improperly Expands RCRA Citizen Suit Authority.

The record is bare of evidence that citizen suit litigation improves regulatory oversight or 

environmental outcomes, or that existing State authorities are inadequate to protect human health 

and the environment. See Section IV, infra. Yet EPA elevates special interest groups and citizen 

suits to co-equal status with State regulators. 75 Fed. Reg. at 35195 (EPA’s “RCRA subtitle D 

approach” to CCR regulation “relies on state (sic) and citizen enforcement”); Majority Letter at 2 

(bipartisan majority “is concerned with the failure to recognize the role of the states...and with 

the enforcement provisions that would elevate the role of citizen suits.”). 2 Never before has 

EPA elevated self-interested advocacy groups, who have both a compelling economic interest in 

citizen suit litigation and an ideological antipathy to the coal mining and electric power 

industries, to at least a functional equivalency with State regulators, who serve the public 

interest. Compare 75 Fed. Reg at 35143-144 (Environmental Council of the States concludes 

State regulation is adequate and sufficient); 2 For example, the Agency claims “EPA believes it 

cannot conclude that the RCRA subtitle (sic) D regulations will ensure there is no reasonable 

probability of adverse effects on health or the environment, unless there is a mechanism for 

states and citizens to monitor the situation...so they can determine when intervention is 

appropriate...”. Id. at 35195 (emphasis added). Therefore, EPA proposes to “require the owner 

or operator of the [CCR] facility to obtain certifications by independent professional 

engineers...as a mechanism to facilitate citizen oversight and enforcement.” 75 Fed. Reg. at 

35194. Strangely, EPA takes measures to facilitate citizen suit litigation without acknowledging, 

much less accounting for, the experience or input of State regulators. The Agency should at least 

explain why it has decided to empower litigious, “professional plaintiff” advocacy groups 

without support from State environmental agencies for doing so. 35195 (EPA determines without 

evidence that measures to “facilitate” citizen suits are required).

Congress intended RCRA citizen suits serve only a supplementary enforcement function. Here, 

however, EPA has used its regulatory policy-making power to invest citizen suits with 

unprecedented regulatory prominence, effectively restructuring RCRA by regulation without 

Congressional sanction. EPA’s new policy is particularly hard to understand given the clearly 
632

expressed Congressional concerns regarding the taxpayer burdens, and the systemic abuse and 

collusion, associated with these suits. See e.g., Letter from Rep. Rob Bishop, et al., to Eric H. 

Holder dated November 3, 2009, 

http://robbishop.house.gov/WesternCaucus/News/?postid=152444; Majority Letter at 2

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06357-1

Organization1:Kansas City Power & Light Company

Commenter1: Paul M. Ling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

EPA Should Adopt the Subtitle D Prime Option, with Appropriate Adjustments, and Coordinate 

Implementation of the Subtitle D Regulations with the States

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06357-27

Organization1:Kansas City Power & Light Company

Commenter1: Paul M. Ling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Program Must Include A Mechanism For State Implementation Of The CCR 

Rules

While KCP&L supports the Subtitle D Prime option (with the adjustments), a major shortcoming 

of this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism 

for qualified state programs to step in and directly administer the Subtitle D CCR regulations 

where the state programs meet or exceed the federal controls.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state 

programs in Kansas and Missouri to administer the rules in lieu of the self-implementing 

approach set forth in the proposal. EPA Region VII is not currently staffed to handle the day to 
633

day administration of the proposed rule and there is no need for them to do so in this region 

where both Kansas and Missouri have viable programs in place. The EPA could evaluate state 

programs in the same manner they currently do for municipal solid waste landfills administered 

under state programs. EPA could readily develop a process for evaluating state CCR controls and 

determining whether state controls are no less stringent than the final Subtitle D controls (much 

like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In 

those states that have qualifying controls for CCRs, EPA would allow the states to administer the 

controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this 

way, many of the self-implementing procedures in the Subtitle D approach could be eliminated 

as there would be a qualified state regulatory body with responsibility for ensuring compliance 

with the applicable requirements. This approach would allow for the requisite degree of state 

involvement in administration of the CCR rules that EPA concluded was appropriate in its 

Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory 

controls as directed by the Bevill Amendment.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06357-5

Organization1:Kansas City Power & Light Company

Commenter1: Paul M. Ling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

The Subtitle D Prime Option Requires Certain Amendments to Better Reflect CCR Disposal 

Operations

While KCP&L supports the Subtitle D Prime option, and believes that it can be administered 

through qualified state programs with back-up EPA enforcement authority in under-performing 

states, there are fundamental flaws with elements of the proposed regulations in need of 

correction. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06409-18

Organization1:State of Alaska
634

Commenter1: Kristin J. Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.3.1

Comment Excerpt Text:

3. The proposed 40 CFR 257 subpart D regulations assign the responsibility for certifying the 

adequacy of the design, operation, monitoring, and closure of CCR landfills to independent 

registered professional hydrologists or engineers rather than to state regulatory agencies. The 

regulations are also designed "so that facilities are able to implement the standards without 

interaction with regulatory officials". [Footnote 12: Federal Register, Volume 75, No. 118, June 

21, 2010, page 35211.] The ADEC disagrees with this concept because the independent 

professional hydrologists or engineers who provide the required certification will be contracted 

by the facility owner/operator. At that point, the hydrologist or engineer is no longer truly 

"independent". This creates a conflict of interest in which those who do the certifying are paid by 

those who need the certification.

The proposed regulations also create a confusing situation in which CCR landfill owners and 

operators will need to design, build, operate, and close their facilities in compliance with both 

Alaska's permitting program and the federal regulations. However, because the proposed Subtitle 

D regulations can be implemented without interaction with the ADEC, it is conceivable that a 

CCR landfill could be built without any contact with the ADEC. In that respect, the proposed 

Subtitle D regulations undermine the ADEC's role as the regulatory authority for Subtitle D 

disposal facilities in Alaska.

The ADEC also notes that deferring to paid consultants to certify designs and plans that 

otherwise fall under state Subtitle D permitting programs contradicts the EPA's position 

regarding state Subtitle D permitting programs as stated in its proposed rule regarding the 

Identification Of Non-Hazardous Secondary Materials That Are Solid Waste. In that proposed 

rule, the EPA states that "the states are the lead Agencies for implementing the non-hazardous 

waste programs and, as such, the Agency wanted to make sure that state programs are not 

adversely affected by any decisions that are made by EPA, noting that we see a benefit to 

deferring to state decisions, which are able to consider site-specific information.” [Footnote 13: 

Federal Register, vol. 75, no. 107, June 4, 20 10, page 31855.] The self implementing regulations 

of the proposed Subtitle D option that require no interaction with state regulatory officials 

suggest an entirely different intent.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-13

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

Commission of Wisconsin (WI PSC)
635

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.1.2

Comment Excerpt Text:

Input from Wisconsin Utilities. Department staff and managers met with Wisconsin utility 

representatives to discuss the federal proposal. These electric utilities include We Energies, 

Alliant Energy, Wisconsin Public Service Corporation, Dairyland Power, Xcel Energy, and 

Madison Gas & Electric As noted previously, the department has many years of experience 

working with these companies on regulatory issues in general and waste management issues in 

particular, and we have a good working partnership on waste management and beneficial use of 

CCR materials. 

At this meeting, the Wisconsin utilities expressed support for Wisconsin’s regulatory approach. 

Furthermore these utilities agreed that EPA should use state regulation under Subtitle D with 

EPA and state program oversight. WDNR and these utilities believe a program for industrial 

wastes similar the EPA MSW Subtitle D program that allows for states to use their own 

regulations and statutes and resources to ensure quality industrial landfill siting, design, 

monitoring, operation and maintenance, along with a companion beneficial use program for 

appropriate industrial byproducts, is a better approach than the EPA Subtitle D self implementing 

approach. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-19

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.6

Comment Excerpt Text:

In order to accomplish this recommended approach, EPA should undertake considerable 

additional analysis based on comments, revise its proposed rule to focus solely on regulation 

under Subtitle D of RCRA in a manner consistent with the approach used for municipal solid 

waste that calls for state oversight. Once these revised rules are drafted, EPA should provide for 

additional public comments. 
636

The department further recommends to EPA that the best management practices for CCR 

materials is under an effective Subtitle D waste management program with adequate state 

oversight. An effective subtitle D program is a solid waste program with sufficient state 

regulatory over-sight covering: facility siting, liner requirements, monitoring, capping, long term 

care and financial responsibility that should be adequate to ensure proper management of CCR 

material. This must include review by state Waste Program Regulatory staff in siting, design, and 

construction to ensure compliance. Based on our experience, WDNR does not believe the EPA 

self-implementing approach would be successful and the self-implementing provision should be 

removed and replaced with a requirement for state oversight where states can demonstrate an 

effective program under Subtitle D. WDNR recommends EPA reexamine its interpretation of its 

regulatory authority to delegate to states the authority to manage Subtitle D equivalent programs. 

If additional authority is needed for EPA to delegate such a program to the states, then EPA 

should work with Congress to create the necessary authority. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-44

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.3.1 4.4.5.1.1

Comment Excerpt Text:

EPA requests input on pages 35194 & 35197 of the preamble on whether independent 3rd party 

PE is sufficient guarantee that regulationss will be protective and whether other mechanisms 

would provide facility flexibility and/or verification. We do not agree with a self-implementing 

approach in this proposed rule and believe that there is substantial value in a site investigation or 

siting process and State and/or federal agency review. Landfills are similar in magnitude to large 

public works projects, in that detailed review by a building permit review engineer is necessary 

to protect the public interest. The self-implementing nature of the proposed rule is not 

sufficiently flexible or protective. 

We do not agree with the assertion that an independent 3rd party PE is a sufficient guarantee that 

solid waste disposal facilities are adequately designed, constructed, operated, or closed. Our 

concern is based on experience dealing with owners, contractors, and consultants, both in design 

and in construction. EPA states in the Preamble that it is concerned about the lack of uniformity 

or adequacy when comparing State programs. Professional engineers vary in their experience, 

training, and background in the varied aspects of practice that are needed to design and construct 
637

a solid waste facility. They also operate in a market where the need for jobs and market share 

work against doing more than the lowest common denominator. We have seen the problems that 

can occur if owners of waste disposal facilities select engineering firms that are small, 

inexperienced, or operating outside of their past professional practice. We do not believe that 

leaving decisions about acceptability of design or construction solely in the hands of an 

consulting engineer employed by the landfill owner is adequate. 

Landfills are large earthwork structures, and earthwork construction is difficult, time-consuming, 

and subject to delays due to weather and availability of equipment and materials, all of which 

results in considerable pressure to complete projects. This can lead to shortcuts that are not 

advantageous. We find that interaction between regulatory staff, landfill owners, and technical 

consultants is essential to assure that landfill construction meets the intent of the facility design. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-45

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.3.1

Comment Excerpt Text:

The proposed notification by use of internet web pages is after-the-fact and does not substitute 

for interaction with the utility and its consulting engineer at the siting and design stage and 

observation during construction. We have found that these steps are crucial for effective design 

and documentation of solid waste landfills since landfill plan review in our agency started in the 

mid-1970’s. 

The proposed internet web posting of notices and other information may be sufficient for afterthe-fact record-keeping. We do not object to the use of the web, although EPA should be 

cautious to not become dependent on a technology that may become outdated. We recommend 

that the rule require that owner/operators of CCR landfills be required to provide documents 

directly to the State agencies that regulate landfills. Documents could be provided electronically 

and, once received by the State agencies, would be publicly available under State and Federal 

public record rules. 

If EPA intends to proceed with the RCRA Sub D self-implementing alternative, the rule should 
638

also clearly state that it does not supersede or override authority by State agencies to require a 

review process for plan review of siting, design, construction, waste filling, and closure. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-47

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.3.1

Comment Excerpt Text:

The proposed notification of the State agencies discussed on pp. 35194- 35195 or the preamble 

proposes that a web site maintained by each utility would be required for concurrent notification 

of States agencies and the public of documentation in the operating record. This is after-the-fact 

reporting of accomplished actions, and is not sufficient for effective plan review and interaction 

prior to changes being made to design, construction, monitoring, recordkeeping, etc. of utility 

CCR disposal facilities. 

We do not object to the posting of information on a web page, as long as cost of maintaining the 

web page is bourn by the utilities and provisions are made to assure that the web page or 

successor technologies will be maintained over the time period for siting, licensing, construction, 

filling, closure, and long-term care, which collectively could be several decades. 

However, a more significant issue for environmental protection is to assure that State agency 

authority will be maintained for plan review, licensing, inspections, construction oversight, 

receipt of monitoring data, etc., without being superseded or compromised by a federal rule. 

Information should not be withheld from State agencies because of perceptions that it is a 

duplication of the web-based notification. In particular, documentation of proposed design, 

achieved construction, monitoring instrumentation and results, closure work, remedial actions, 

etc., should be required to be provided directly to the State agency prior to implementation and in 

accordance with State agency timelines. The rule should not imply or state that it is sufficient to 

post information on a web page after the fact as satisfying the legitimate interest State agencies 

have in regulating CCR disposal facilities. 

We have found it essential as a State regulatory agency to perform plan review prior to allowing 

owners to proceed with construction, to inspect facilities during construction, to be able to 

review construction documentation and any proposals for design changes before they are 

implemented, and to receive all monitoring data for retention in and extraction from our 
639

electronic database systems. It is not sufficient for the State agencies to be notified of such items 

after the fact. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-5

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

In order to accomplish this recommended approach, we strongly suggest EPA undertake 

considerable additional analysis based on comments received, and revise its proposed rule to 

focus solely on regulation under Subtitle D of RCRA in a manner consistent with the approach 

used for municipal solid waste that calls for state oversight. Once these revised rules are drafted, 

EPA should provide for additional public comments.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-71

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

Section XI on p. 35211 of the preamble, entitled Impact of Sub D alternative on State programs, 

states that the proposed rule has no effect on state rules. It also states that CCR landfill owners 

would have to comply with all elements of the self-implementing proposed RCRA Sub D CCR 

rules, more or less regardless of the content of State rules. We believe that it is essential that the 
640

proposed rule recognize that State rules will apply to CCR landfills and to include a provision 

that States can approve CCR landfill with features that differ from the proposed rule 

requirements. As noted in several sections above, there are aspects of the proposed rule that may 

be less stringent than State rules or which address variations in engineering design or materials, 

climatic factors, or geologic situations that the proposed rule does not address or is in 

contradiction with modern technical or geotechnical practice. It is essential that State rules and 

review actions be allowed to modify requirements in the proposed RCRA Sub D selfimplementing rule, to address technical judgment and to incorporate technical advances that the 

rule does not anticipate. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06422-26

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CCR facilities must meet Subtitle D requirements -- they are not optional, unenforceable 

guidelines. Most states, including New York and Illinois where Dynegy's CCR facilities are 

located, already implement and enforce effective regulatory programs tailored to the wideranging circumstances of CCR management, including groundwater monitoring, closure and 

post-closure care requirements. Compliance with those requirements would still be required. 

Further, many other states are likely to adopt federal Subtitle D requirements for CCRs.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06422-29

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
641

Comment Excerpt Text:

As explained in detail in section XI.D of USWAG's comments on the Proposed CCR Rule, EPA 

also has the statutory authority to develop Subtitle D regulations for CCRs that can be 

administered by state permitting programs in the first instance and, where states fail to 

implement such programs adequately, directly enforced by EPA. RCRA sections 4010(c) and 

4005(c) provide EPA that authority because non-hazardous waste CCR disposal facilities have 

the potential to receive household wastes or conditionally exempt small quantity generator waste, 

whether or not such waste is actually received at the CCR disposal facility. Such an approach 

also would respect existing state programs that regulate CCRs.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-3

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 1.5 4.2.4 7.4.2

Comment Excerpt Text:

State Adoption of EPA Rules

EPA should use the same methodology for regulating CCRs as was used in implementing the 

Subtitle D landfill rules for municipal solid waste. EPA should adopt rules setting a minimum 

standard, provide for the adoption of these rules by the states, and maintain enforcement 

authority for these rules in states that EPA determines have not adequately implemented these 

rules.

All subsequent comments are based on the assumption that EPA will allow for state adoption of 

the proposed rule. If EPA elects not to allow for state adoption of the proposed rules, we request 

an additional public comment period to adequately address the proposed rules.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06589-3

Organization1:

Commenter1:Paul Benedict

Commenter Type: Private Citizen
642

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Your agency has also concluded that the states can safely manage coal ash under federal nonhazardous waste rules. I strongly support the development of non-hazardous waste rules for coal 

ash that would complement rather than replace state regulatory programs. These rules could be 

quickly established and would typically involve landfill standards for municipal and nonhazardous solid waste, and rely on performance standards, rather than complex regulatory 

requirements. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06589-5

Organization1:

Commenter1:Paul Benedict

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I am a great believer in states rights. Regulating coal ash as a non-hazardous waste maintains the 

long-standing state authority to regulate coal ash and relieves states of the burden of having to 

administer a new federal program at a time when state budget resources are under great strain. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06832-2

Organization1:SCANA Corporation

Commenter1: Shirley M. Ruffin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.2.1

Comment Excerpt Text:

This option could include language giving state agencies key implementation roles thereby 
643

allowing agencies such as the South Carolina Department of Health and Environmental Control 

to regulate CCRs under their solid waste regulations. This approach would enable the creation 

and implementation of an effective regulatory program that fully protects the environment while 

retaining and not unduly limiting effective options for beneficial use. In turn, this will help to 

preserve “green” jobs and avoid yet another negative impact to our nation’s fragile, struggling 

economy.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06838-7

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 7.1.1.1 7.1.2.1

Comment Excerpt Text:

Liners: 

There should be state oversight for all disposal facility designs. Minnesota does an independent 

review of all facility designs prior to permit issuance. MPCA staff have approved alternative 

liner designs for disposal facilities if they are at least as protective as the USEPA's proposed 

composite liner system. Minn. R. 7035.2815, subp. 7(K) allows the commissioner to approve an 

alternative liner system design ... "The commissioner's approval shall be based on the ability of 

the proposed liner system to control leachate migration, meet performance standards, and protect 

human health and the environment." These landfill liners consist of a 1 foot of clay, 2 feet of 

clay, or a Geosynthetic clay liner overlain by a minimum 60 mil HDPE liner.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA. With regard to 

alternative landfill liner diesigns the commenter is referred to the discussion in Unit VI of the 

preamble, as well as supporting documentation (Response to Comment document) on this 

issue. 

Comment Number: EPA-HQ-RCRA-2009-0640-06863-10

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company
644

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

Avista believes that any final Subtitle D regulatory program for CCRs must include a mechanism 

for the administration and implementation of the rules by the states. As EPA itself has 

concluded, many states already have well-established and protective regulatory controls for 

CCRs. Therefore, it makes sense to coordinate development of new federal rules for CCRs with 

existing state regulations. Failure to do so will result in redundant and potentially inconsistent 

regulations and would contravene the Bevill Amendment’s directive that, in developing federal 

regulations for CCRs, EPA avoid duplication of effort with pre-existing regulatory programs. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-25

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

The Subtitle D approach must allow for state implementation of the federal regulations. 

While Avista supports the Subtitle D Prime option (with the adjustments discussed below), a 

major shortcoming of this approach, as well as with the other Subtitle D alternatives, is the lack 

of any mechanism for qualified state programs to step in and directly administer the Subtitle D 

CCR regulations exist. For instance, Montana’s Major Facility Siting Act [under which Colstrip 

is regulated through its Certificate of Environmental Compatability and Public Need], meets or 

exceed the federal controls. EPA’s proposed approach makes no practical sense, and it would 

result in parallel and redundant regulatory programs for the same materials. Colstrip has been 

fully regulated by the Montana Department of Environmental Quality (DEQ) since the plant was 

constructed, Avista is very concerned about how problematic it will be to maintain compliance 

with dual regulatory programs – both state and federal – for CCR. Furthermore, such an 

approach would directly contravene the Bevill Amendment’s directive that EPA must avoid 

duplication of effort with pre-existing regulatory programs. 

See RCRA 8002(n) [Footnote 1: This section provides, in relevant part, that “the Administrator 

shall, as he deems appropriate, review studies and other actions of other Federal and State 

agencies concerning [CCRs] and invite participation by other concerned parties, including 

industry and other Federal and State agencies, with a view toward avoiding duplication of 

effort.”]. EPA has previously recognized this point. One of the Agency’s primary reasons for 
645

concluding in its 2000 Regulatory Determination that CCRs do not warrant Subtitle C regulation 

was Congress’s admonition in the Bevill Amendment against duplication of efforts by other 

federal and state agencies.65 Fed. Reg. 32215. Unfortunately, EPA has failed to adhere to this 

Congressional directive in the proposed Subtitle D regulatory alternatives, including the Subtitle 

D Prime option, and has proposed a self-implementing program that will impose duplicative and 

redundant requirements. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-27

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Nonetheless, under all the proposed Subtitle D options, these state controls would be 

administered in addition to, and without coordination with, nearly identical, self-implementing 

federal controls. Such duplication is both unnecessary and unduly burdensome. 

Under this dual regulatory approach, for example, an owner/operator of a CCR disposal facility 

could be found to be in non-compliance with a groundwater monitoring requirement that is 

contained in both the Subtitle D self-implementing rule and in an independently administered 

state regulatory program. In these circumstances, the owner/operator could be subject to a citizen 

suit enforcement action in federal court for alleged violation of the self-implementing Subtitle D 

rule, and to a wholly separate enforcement action in state court for violation of the parallel state 

requirement. This makes no sense; apart from the waste of federal and state judicial resources 

and company resources, it could result in inconsistent federal and state court determinations with 

respect to an identical regulatory requirement. It also could result in duplicative federal and state 

penalties for essentially the same regulatory infraction. 

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state 

programs to administer the rules in lieu of the self-implementing approach set forth in the 

proposal. As discussed below, EPA could readily develop a process for evaluating state CCR 

controls and determining whether state controls are no less stringent than the final Subtitle D 

controls (much like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. 

Part 258). In those states that have qualifying controls for CCRs, EPA would allow the states to 

administer the controls to avoid the duplication of regulatory programs, with appropriate EPA 

backup. In this way, many of the self-implementing procedures in the Subtitle D approach could 

be eliminated as there would be a qualified state regulatory body with responsibility for ensuring

compliance with the applicable requirements. This approach would allow for the requisite degree 

of state involvement in administration of the CCR rules that EPA concluded was appropriate in 
646

its Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory 

controls as directed by the Bevill Amendment. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-5

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Instead Avista believes that EPA regulation of CCRs under the subtitle “D Prime” option is more 

appropriate, including a modification that would integrate the federal rule with current state 

regulatory programs. This approach will create a reasonable and effective regulatory program 

that protects the environment, retains options for beneficial use, limits the reliability impacts, and 

preserves jobs, while not adversely impacting our economy. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06872-21

Organization1:State of Pennsylvania Department of Environmental Protection

Commenter1: Todd M. Wallace

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3 4.2.5

Comment Excerpt Text:

According to EPA, the design and performance standards for the proposed regulations will likely 

be the same regardless of what regulatory scheme is selected. The major difference in the 

approaches is that EPA asserts that a Subtitle C designation is necessary for it to retain and 

exercise appropriate enforcement authority and EPA cannot require States to permit landfills 

under Subtitle D. The PA DEP recognizes that regulatory oversight is important to ensure that 

CCR is managed appropriately; however, PA's Solid Waste Management Act already authorizes 

state enforcement authority, and PA DEP exercises that authority. Subtitle D requires state 
647

programs to have the necessary enforcement authority as part of the federal approval process. 

This approach has been successful for PA, as evidenced by the 96% compliance rate for CCR 

facilities. In addition, EPA already has broad RCRA 7003 enforcement authority to address 

"Potential Substantial Threats or Endangerments to Human Health and the Environment" as well 

as imminent hazards for releases of solid waste and, therefore, it does not require the additional 

authority under Subtitle C.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06917-15

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: Tangela Niemann on behalf of Mark R. Vickery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

Subtitle D would be a better approach because it would give the states authority and flexibility to 

effectively regulate the management of CCRs. EPA's own studies support this position. EPA's 

conclusion in 2000 was that increased state oversight over CCRs produced significant 

improvements in waste management practices and that regulation under Subtitle D was 

appropriate.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-4

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. The Subtitle D Program Must Include A Mechanism For State Implementation Of The CCR 

Rules 

Tri-State G&T believes that the current regulatory controls and permitting programs are 

protective of the environment and public health. Tri-State G&T also believes that EPA can take 
648

no further action to regulate CCRs as a result of their proposal. However, EPA has set forth three 

regulatory options for public comment. Of the options proposed, Tri-State G&T supports the 

Subtitle D Prime option, with necessary adjustments, however, a major shortcoming of this 

approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for 

qualified state programs to directly administer the Subtitle D CCR regulations where the state 

programs meet the federal controls without redundancy. EPA’s proposed approach would result 

in parallel and redundant regulatory programs for and, more importantly, would directly 

contravene the Bevill Amendment’s directive that EPA avoid duplication of effort with preexisting regulatory programs. 

As a result of its findings in the final 2000 final Regulatory Determination and the supplemental 

2007 joint EPA/DOJ report of state CCR programs, EPA is well aware that there are many 

mature state CCR regulatory programs with permitting, liner and groundwater monitoring 

controls similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 

final Regulatory Determination that state CCR controls have substantially improved over the last 

15 years, and that a high percentage of states had authority to impose protective management 

standards on surface impoundments and landfills, especially for groundwater monitoring, liners, 

and leachate collection. The most recent survey of state CCR controls compiled in 2009 by the 

Association of State and Territorial Solid Waste Management Officials (“ASTSWMO”) 

confirms the increasing level of protection provided by state controls, finding, among other 

things, that 86% of the states with CCR landfills and 69% of states with CCR surface 

impoundments have permitting requirements for these disposal units. Tri-State G&T believes 

that the 2000 final Regulatory Determination and the recent ASTSWMO survey indicate that the 

current regulatory structure is protective of the environment and public health.

Tri-State believes it is essential that any final Subtitle D rules for CCRs include a mechanism for 

qualified state programs to administer the rules in lieu of the self-implementing approach set 

forth in the proposal. EPA could readily develop a process for evaluating state CCR controls and 

determining whether state controls are no less stringent than the final Subtitle D controls (much 

like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In 

those states that have qualifying controls for CCRs, EPA could allow the states to administer the 

controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this 

way, many of the self-implementing procedures in the Subtitle D approach could be eliminated 

as there would be a qualified state regulatory body with responsibility for ensuring compliance 

with the applicable requirements. This approach would allow for the requisite degree of state 

involvement in administration of the CCR rules that EPA concluded was appropriate in its 

Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory 

controls as directed by the Bevill Amendment

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06987-30

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company
649

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle D Option Should Be Revised To Allow For State Implementation

As discussed above in regards to the adequacy of existing Solid Waste Management programs in 

place in Arkansas and Louisiana, Entergy is supportive of EPA’s intent to promulgate federal 

minimum criteria for the management of Coal Combustion Residuals (CCRs) under RCRA 

Subtitle D non-hazardous waste rules. However, as currently written, the Subtitle D proposal 

allows for self- implementation with enforcement through citizen and state law-suits. Entergy 

requests the EPA revise the Subtitle D proposal to allow for minimum federal standards that are 

implemented through state permitting, compliance and enforcement programs. Adequate 

programs are already in place in many states to ensure that the management of CCRs occurs in 

such a way that protects the environment, complies with regulations, and ensures the continued 

beneficial reuse of CCRs. It would be inappropriate for EPA to override these adequate existing 

state programs. This concept also would expose utilities to a very uncertain and uneven process 

of “regulation by lawsuit.”

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06987-7

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1 7.4.2

Comment Excerpt Text:

However, Entergy contends that the Subtitle D “Prime” option, as written, requires 

improvements, including allowing for administration of the federal Subtitle D rules for CCRs by 

state regulatory programs to avoid duplication of federal and state efforts. This would also allow 

states to enforce compliance through a traditional permitting framework. Entergy also believes 

that this option does not limit EPA’s enforcement authority, since sections 4003(a), 4010(c) and 

similar provisions of RCRA clearly allow EPA to oversee state rules regulating solid wastes. 

EPA already exercises this authority with municipal solid waste (MSW) landfills and non-MSW 

landfills that may receive conditionally exempt small quantity generator hazardous waste. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
650

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06988-14

Organization1:Missouri Joint Municipal Electric Utility Commission

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

MJMEUC joins APPA in endorsing USWAG’s comment that the Subtitle D Program must 

include a mechanism for state implementation of the CCR rules. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06993-10

Organization1:Oglethorpe Power Corporation

Commenter1: Douglas J. Fulle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has already acknowledged significant improvements in state CCB programs and industry 

practices over the years. [Footnote 15: 65 Fed. Reg. 32214, 32215 (May 22,2000).] Nevertheless, 

EPA expresses concern with the Subtitle D option in noting that some states still have not 

developed Subtitle D-type regulations for CCB disposal, especially CCB surface impoundments. 

[Footnote 16: 75 Fed. Reg. at 35153.] Apparently, EPA has concluded that these states will be 

unable to implement Subtitle D standards for CCBs because they have not already done so. This 

reasoning is circular and flawed. EPA has never promulgated Subtitle D standards for CCBs, and 

as a result, states have been without any federal guidelines relating to CCB disposal. The record 

lacks any reasonable basis for concluding that states would fail to implement Subtitle D 

standards for CCBs, if EPA were to promulgate them.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.
651

Comment Number: EPA-HQ-RCRA-2009-0640-06993-7

Organization1:Oglethorpe Power Corporation

Commenter1: Douglas J. Fulle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Nothing in the rulemaking record indicates that states would be unable to implement and enforce 

minimum federal standards for CCBs under Subtitle D of RCRA. In fact, the vast majority of 

states with coal-fired utilities already have permit programs for CCB landfills. [Footnote 8: Id. at 

35152.] Most of those states enforce minimum liner requirements and mandatory groundwater 

monitoring. While liner requirements are less prevalent for surface impoundments, more than 

half of the states with coal-fired utilities implement permit programs for CCB surface 

impoundments. States have made these significant advancements in their CCB programs even in 

the absence of federal minimum standards for CCBs under Subtitle D.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-07533-3

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

However, none of the approaches discussed in the proposal allow for an appropriate level of 

flexibility for implementing a program in varying geologic and climatic settings. We firmly 

believe it would be appropriate to grant states with comprehensive permit programs flexibility in 

how CCR landfills are designed, constructed, and operated.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.
652

Comment Number: EPA-HQ-RCRA-2009-0640-07682-8

Organization1:Class of '85 Regulatory Response Group

Commenter1: Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regulatory 

Response Group

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1

Comment Excerpt Text:

EPA should coordinate the implementation of the Proposal's Subtitle D Prime Option with the 

states and allow qualified state programs to directly administer Subtitle D CCR regulations.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-10

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1 4.2.3.1 4.5

Comment Excerpt Text:

For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 

CFR 258, where States must integrate the federal standards into the State program and seek 

program approval from EPA under 40 CFR 239. This eliminates duplicative requirements and 

allows States to provide detailed technical review by hydrogeologists and engineers of their solid 

and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these 

units are safely designed and operated. This is much more desirable than relying on third-party 

certifications by consultants as would be the case under the proposed RCRA D option, whom 

may not as fully cognizant of the geotechnical conditions that exist in any given area, or be as 

familiar with the historical operating conditions at a particular site. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-11

Organization1:Maryland Department of the Environment (MDE)
653

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

While we understand that EPA strongly desires to have a direct role in the enforcement of the 

rules applicable to CCR, we suggest that EPA consider using the “as stringent as federal law” 

standard and ensure a threshold level of protection for disposal in that manner. Establishing 

national standards and working with the States, which already have permitting and enforcement

capabilities, would be the most effective means of implementing these standards. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-14

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

Maryland also generally agrees with the technical requirements of the proposed approaches 

proposed. The Department, however, does not fully support either of the proposed regulatory 

options

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-23

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
654

Other Sections: 4.2.3.1 7.4.1 4.5

Comment Excerpt Text:

Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where 

States must integrate the federal standards into the State program and seek program approval 

from EPA under 40 CFR 239. This eliminates duplicative requirements, and allows the States to 

provide detailed technical review by hydrogeologists and engineers of their solid and industrial 

waste permitting units to proposed CCR disposal facilities, to insure that these units are safely 

designed and operated. This is much more desirable than relying on third-party certifications by 

consultants, as would be the case under the proposed RCRA D option, whom may not be as fully 

cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the 

historical operating conditions at a particular site.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-24

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.5.2.2 7.4.1

Comment Excerpt Text:

It is also more desirable than the excessive requirements of the RCRA C approach, which, 

particularly with respect to the manifesting requirement, do not add any additional level of safety 

at all while adding a tremendous burden to both the haulers and the States. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-27

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
655

While we understand that EPA strongly desires to have a direct role in the enforcement of the 

rules applicable to CCRs, we suggest that EPA consider using the “as stringent as federal law” 

standard and ensure a threshold level of protection for disposal in that manner. In the interim, 

establishing national standards and working with the States, which already have permitting and 

enforcement capabilities, would be the most effective means of implementing these standards in 

a practical way in the least amount of time. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-29

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 8.6.1

Comment Excerpt Text:

The Department affirms that the BBSS site in Anne Arundel County, Maryland, which was cited 

by EPA as a site where confirmed impact due to CCRs occurred, is in fact such a case. However, 

some other commentors have used this and other damage cases to support the position that the 

States have not effectively addressed coal combustion residuals, and that therefore the only 

alternative is to regulate these materials as hazardous wastes. EPA’s discussion of this case in the 

Preamble makes reference to a Consent Order that included a very significant penalty as well as 

remedial, closure, and postclosure uses that address this site effectively allowing it to be used 

after closure in a safe and protective manner. Also, Maryland has promulgated new regulations 

for the disposal, storage, transportation, and use in mine reclamation that include permitting, 

design, monitoring and closure requirements that are very similar to and in some areas more 

protective than the proposed federal regulations. This, as well as the success of the 40 CFR 258 

regulations governing municipal waste landfills, makes the case that designation as a hazardous 

waste is not the only way to insure that the public is protected from the potential adverse effects 

of coal combustion residuals. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-3

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson
656

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

Maryland also generally agrees with the technical requirements of EPA’s proposed approaches. 

The Department, however, does not fully support either of the proposed regulatory options

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-49

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.3.1 3.1.2 7.4.1 4.5

Comment Excerpt Text:

For the many reasons expressed herein, MDE does not favor regulation under RCRA C, or 40 

CFR 257 as proposed. The Department recommends a system like that used for municipal solid 

wastes under 40 CFR 258, where States must integrate the federal standards into their program 

and seek program approval from EPA under 40 CFR 239. This would eliminate the potential for 

State and federal regulators to work at cross purposes, and facilitate compliance. It would also 

allow the States to provide detailed technical review by hydrogeologists and engineers from the 

solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that 

these units are safely designed and operated. This is much more desirable than relying on thirdparty certifications by consultants whom may not as fully cognizant of the geotechnical 

conditions that exist in any given area, or be as familiar with the historical operating conditions 

at a particular site, as State government scientists whom work in the area full-time. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08221-5

Organization1:NextEra Energy, Inc.

Commenter1: Tomey Tuttle

Commenter Type: Electric Utility Company
657

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As part of a subtitle D approach, USEPA should provide for recognition of effective state 

management programs. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-23

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 4.2.4 4.5

Comment Excerpt Text:

Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing 

authority or seek appropriate authority to adopt rules for the U.S. EPA approval of state CCR 

permit programs modeled after the highly successful Title 40 Part 239: Requirements for State 

Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that 

states with U.S. EPA approved permit programs have direct state enforcement authority in 

addition to the citizen suit enforcement authority. It also clarifies that an owner or operator of a 

CCR disposal facility is not obligated to follow the RCRA subtitle D federal rules if that owner 

or operator has obtained and complies with an approved state issued CCR disposal facility 

permit. This avoidance of duplicative regulation is a significant “carrot” for both industry and 

state government to seek U.S. EPA state permit program approval. For over a decade (1999), this 

approach has successfully ensured state permitting of MSW landfills consistent with minimum 

national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast 

majority having obtained U.S. EPA approval of their state permit programs. It should be noted 

that this has been accomplished by states without the aid of any federal funding. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-5

Organization1:Ohio Environmental Protection Agency
658

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 4.2.4 4.5

Comment Excerpt Text:

Ohio EPA acknowledges U.S. EPA and citizens' concerns regarding the reliance of RCRA 

subtitle D on citizen suit enforcement authority. Specifically, Ohio EPA urges U.S. EPA to 

reexamine the legal interpretation on existing enforcement authority to adopt rules for the U.S. 

EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 

239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 

approach would ensure that states with U.S. EPA approved permit programs have direct state 

enforcement authority in addition to citizen suit enforcement authority. It also clarifies that an 

owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D 

federal rules if that owner or operator has obtained and complies with an approved state issued 

CCR disposal facility permit. This avoidance of duplicative regulation is a significant "carrot" 

for both industry and state government to seek U.S. EPA state permit program approval. For over 

a decade (1999), this approach has successfully ensured state permitting and state enforcement 

authority for MSW landfills consistent with minimum national standards. This Title 40 Part 239 

approach is widely accepted by the states with the vast majority having obtained U.S. EPA 

approval of their state permit programs. I note that this has been accomplished by states without 

the aid of any federal funding.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-11

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.4.8 4.2.4 4.4.9.1

Comment Excerpt Text:

MassDEP recommends that the final EPA regulations include the following critical provisions: 

• National minimum design and performance standards for disposal in landfills that include 

requirements for a composite liner, leachate collection, groundwater monitoring and final closure 

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for 

certain encapsulated uses of CCR in cement products or similar encapsulated uses in products 
659

• State or federal compliance assurance for beneficial uses to ensure that such uses will be 

protective of public health and the environment 

• Financial assurance for landfill closure and post-closure monitoring and maintenance 

• Allowance for states to be more stringent than the final EPA rules 

• Clear enforcement authority and permitting authority for states 

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-12

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.2.4

Comment Excerpt Text:

EPA has asked whether the final regulations should provide for alternative liner designs. 

MassDEP recommends that alternative designs be based on performance equivalent to the 

specified standard design. The Massachusetts regulations include a provision allowing for review 

and approval of alternative designs as long as the design will achieve equivalent or superior 

performance to the standard design for the life of facility operations, closure and post -closure 

period. The equivalent design must use methodologies, materials and technologies that are 

clearly demonstrated to have been successful in similar applications and can use acceptable 

QA/QC methods to monitor construction and performance. 

MassDEP believes alternative designs make the most sense where there is a regulatory agency 

reviewing and approving the alternative. In a self-implementation regulatory scenario, allowing 

for alternative designs without agency oversight creates potential compliance issues. If 

alternative designs are allowed, compliance could be certified by the state or federal government 

or an independent third-party verifier subject to audit and enforcement. 

MassDEP strongly recommends that there needs to be state or federal oversight of design and 

operations of facilities that dispose of CCR. While CCR may be less problematic to manage in a 

landfill environment than MSW and presents fewer management issues, proper design and 

construction of landfills and monitoring systems is critical and should have a federal or state 

oversight and approval process. However, absent state or federal oversight, reliance on third 

party review and certification by independent registered professional hydrogeologists or 
660

engineers, as appropriate, would be beneficial provided the facility design and operation are 

subject to state or federal audit and enforcement. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. Finally, the 

commenter is referred to the discussion in Unit VI of the preamble that addresses alternative 

liner designs for new CCR landfills and surface impoundments

Comment Number: EPA-HQ-RCRA-2009-0640-08848-5

Organization1:American Coalition for Clean Coal Electricity (ACCCE)

Commenter1: Paul Bailey

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA's concerns about the Subtitle D approach are unfounded. Another concern raised by EPA is 

that the Subtitle D co-proposal will be administered by the States and not by EPA. ACCCE does 

not believe that the decision whether to proceed under Subtitle C or Subtitle D can, or should, be 

based on the assumption that States will fail to adopt or enforce the minimum national 

performance standards set by EPA?s Subtitle D criteria. Notably, EPA essentially concludes in 

the preamble that "even though overall industry practices appear to be improving," the fact that 

there have been incidents of "proven damages" to groundwater and surface water under existing 

State programs must mean that those programs are necessarily inadequate. [Footnote 4: 75 Fed. 

Reg. at 35,157]. In reaching this conclusion, EPA fails to take into account the critical fact that 

those state programs were developed and implemented by the States in the absence of national 

criteria under Subtitle D. Indeed, the whole purpose of the Subtitle D co-proposal would be to 

establish minimum technical standards that would be prospectively adopted by the States and 

incorporated into new or existing regulatory programs. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08858-5

Organization1:Cogentrix Energy, LLC

Commenter1: C. Richard Neff

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
661

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Having enforcement of this rule in the hands of the states leaves it where the regulators are most 

knowledgeable of the generating industries and the locales where any materials that are not 

beneficially used, are disposed of.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09282-2

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.4.9.1

Comment Excerpt Text:

NCDWM proposes that EPA regulate CCRs under Subtitle D of RCRA with modifications to the 

current proposal. Rule changes -- and if necessary statutory changes -- should be made to make 

federally approved state permitting programs the foundation for regulating CCR disposal. EPA 

should also provide financial incentives for states to implement federal criteria through state 

solid waste programs. 

A system of prior approval exists in most, if not all, states that will ensure greater consistency 

across the country than the current self-implementing proposal under Subtitle D. Regulation 

under Subtitle D should embrace the existing state permitting programs. A federal approval role 

would ensure that those permitting programs meet or exceed minimum national criteria for CCR 

disposal. The implementation schedule for a final rule under Subtitle D would need to allow time 

for states to make necessary changes in existing state rules and statutes to incorporate federal 

criteria. 

One element that should be added to regulation under Subtitle D is a requirement for financial 

assurance. Financial assurance for closure, post closure care, and corrective action should be 

included in the final rule as a mechanism to ensure that funds will be provided by owner and 

operators to carry out these activities. 

With an enhanced regulatory system under Subtitle D that recognizes state permitting programs 

and provides financial incentives for states to implement federal criteria, EPA can address the 

risks of disposal of CCRs without risk of damaging existing reuse and recycling markets. 

Response: The Agency acknowledges and appreciates the comment, the commenter is 
662

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA. As a final matter, 

financial assurance requirements were not proposed under the subtitle D option and are not 

being promulgated under this rule. As discussed in the proposal, if financial assurance is to be 

addressed for those units affected by this rule it would be in a separate action, possibly under 

the authority of CERCLA. See75 FR at 35210, June 21, 2010.

Comment Number: EPA-HQ-RCRA-2009-0640-09282-9

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

Prior Approval Under Subtitle D Approach is Needed:

A system of prior approval of design and operational plans, such as the permitting system used in 

North Carolina, should be included in the regulations. A state agency should issue the prior 

approval for CCR disposal facilities. 

Existing state programs should have the ability to gain EPA program approval to implement 

permitting, inspection/enforcement and other oversight of the CCR landfills and surface 

impoundments under RCRA Subtitle D. 

Groundwater monitoring and air criteria should be reported to the state program. 

Prior approval from the state program should be required for assessment monitoring plans, 

assessment of corrective measures, selection of remedy and implementations of the corrective 

action regulations, closure plans and post-closure care plans. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. The commenter is 

also referred to the recordkeeping requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-35

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive
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Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 7.1.1.1 4.7

Comment Excerpt Text:

Pg. 35243, Section 257.70 Design criteria for new CCR landfills and lateral expansions: States 

must have the flexibility to review and approve of alternative liner designs that will provide 

adequate protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best 

Available Demonstrated Control Technology criteria and process in developing the design for a 

facility which allows for the use of site-specific design elements. Arizona requests that paragraph 

(a)(1) of this section be modified to allow alternate designs approved under state programs as 

follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection 

system that is designed and constructed to maintain less than a 30-cm depth of leachate over the 

liner or an alternate design approved by the Director of an approved state that demonstrates that 

leachate will be contained or managed in a manner that is protective of groundwater and 

surface water. The design of the composite liner and leachate collection system or alternate 

design must be prepared by, or under the direction of, and certified by an independent, 

registered, professional engineer.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-36

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 7.1.2.1 4.7

Comment Excerpt Text:

Pg. 35243, Section 257.71 Design criteria for existing CCR surface impoundments: States must 

have the flexibility to review and approve of alternative liner designs that will provide adequate 

protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best Available 

Demonstrated Control Technology criteria and process in developing the design for a facility 

which allows for the use of site-specific design elements. Arizona requests that paragraph (a)(1) 

of this section be modified as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a leachate collection 

system above the upper components of the composite liner or an alternate design, approved by 

the Director of an approved state, that prevents migration of wastes out of the impoundment to 

subsurface soils, groundwater, or surface water. The design shall be in accordance with a design 
664

prepared by, or under the direction of, and certified by and independent registered professional 

engineer.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-41

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.8.4 4.7 7.1

Comment Excerpt Text:

Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final cover designs 

be approved by the Director of an approved state. Arizona’s Aquifer Protection Permit Program 

allows for the final cover design to be developed using the a Best Available Demonstrated 

Control Technology criteria and process and the design must be approved in the facility’s permit. 

Arizona requests that paragraphs (e)(1) and (e)(2) of section (e) be deleted and section (e) be 

modified as follows (modification in italics):

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative 

final cover design, provided the alternative cover design is approved by the Director of an 

approved state and certified by an independent registered professional engineer.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-43

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.8.9 4.7

Comment Excerpt Text:

Pg. 35253, Section 257.101 Post-closure care requirements: The Director of an approved state 

must have the ability to review and approve any request for reduction in the 30-year post-closure 

care period. Arizona requests that paragraph (b)(1) be modified as follows (modification in 
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italics):

(1) Decreased if the owner or operator of the CCR landfill or surface impoundment demonstrates 

that the reduced period is sufficient to protect human health and the environment and this 

demonstration is certified by an independent registered professional engineer and approved by 

the Director of an approved state. Upon approval, the demonstration shall be placed in the 

operating record and on the owner’s or operator’s publicly accessible Internet site.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09713-3

Organization1:Indianapolis Power & Light Company (IPL)

Commenter1: Dana G. Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In this respect, IPL believes that any final Subtitle D regulatory program for CCRs must include 

a mechanism for the administration and implementation of the rules by the states. As EPA itself 

has concluded, many states already have well-established and protective regulatory controls for 

CCRs. Therefore, it makes no sense not to coordinate development of new federal rules for 

CCRs with existing federal and state solid waste regulations that already apply to CCRs. Failure 

to do so will result in redundant and potentially inconsistent regulations and would contravene 

the Bevill Amendment's directive that, in developing federal regulations for CCRs, EPA avoid 

duplication of effort with pre-existing regulatory programs.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09885-19

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

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

Comment Excerpt Text:

The Subtitle D program must include a mechanism for state implementation of the CCR rules

While Progress Energy supports the Subtitle D Prime option (with the adjustments described 

below), a major shortcoming of this approach, as well as with the other Subtitle D alternatives, is 

the lack of any mechanism for qualified state programs to step in and directly administer the 

Subtitle D CCR regulations where the state programs meet or exceed the federal controls. Such 

an approach would result in parallel and redundant regulatory programs for the same materials 

and, more importantly, would directly contravene the Bevill amendment’s directive that EPA 

avoid duplication of effort with pre-existing regulatory programs. EPA has previously 

recognized this point; one of the agency’s primary reasons for concluding in its 2000 Regulatory 

Determination that CCRs do not warrant Subtitle C regulation was Congress’ admonition in the 

Bevill amendment against duplication of efforts by other federal and state agencies. 

Unfortunately, EPA has failed to adhere to this congressional directive in the proposed Subtitle 

D regulatory alternatives, including the Subtitle D Prime option.

As a result of its findings in the final 2000 Regulatory Determination and the supplemental 2007 

joint EPA/DOE Report of state CCR programs, EPA is well aware that there are many mature 

state CCR regulatory programs with permitting, liner, and groundwater monitoring controls 

similar to those proposed in the Subtitle D options. In fact, EPA concluded in its 2000 

Regulatory Determination that state CCR controls have “substantially improved over the last 15 

years,” and that a “high percentage of states had authority to impose protective management 

standards on surface impoundments and landfills, especially for groundwater monitoring, liners, 

and leachate collection...” Under this dual regulatory approach, for example, an owner/operator 

of a CCR disposal facility could be found to be in non-compliance with a groundwater 

monitoring requirement that is contained in both the Subtitle D self-implementing rule and in an 

independently administered state regulatory program. In these circumstances, the owner/operator 

could be subject to a citizen suit enforcement action in federal court for alleged violation of the 

self-implementing Subtitle D rule, and to a wholly separate enforcement action in state court for 

violation of the parallel state requirement. Apart from the waste of federal and state judicial 

resources, a dual regulatory approach could result in inconsistent federal and state court 

determinations with respect to an identical regulatory requirement. It also could result in 

duplicative federal and state penalties for essentially the same regulatory infraction.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state 

programs to administer the rules in lieu of the self-implementing approach set forth in the 

proposal. EPA could readily develop a process for evaluating state CCR controls and 

determining whether state controls are no less stringent than the final Subtitle D controls (much 

like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In 

those states that have qualifying controls for CCRs, EPA would allow the states to administer the 

controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this 

way, many of the self-implementing procedures in the Subtitle D approach could be eliminated 

as there would be a qualified state regulatory body with responsibility for ensuring compliance 

with the applicable requirements. This approach would allow for the requisite degree of state 
667

involvement in administration of the CCR rules that EPA concluded was appropriate in its 

Reports to Congress and final Regulatory Determinations and avoid duplication of regulatory 

controls as directed by the Bevill Amendment

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-29

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.5.1 4.4.5.1.1 4.4.7.5.2 4.4.7.2 4.6.1.4

Comment Excerpt Text:

SRP urges EPA to adopt the non-hazardous waste, Subtitle D Prime approach to regulation of 

CCRs with the following important revisions or modifications: 

Allow alternatives to composite liners when site specific characteristics support such 

alternatives. 

Require closure, if necessary, only under a state approved program that provides a reasonable 

time frame. 

Allow an alternative list of groundwater monitoring parameters based on site specific conditions 

and approval by a registered professional. 

Include a mechanism for qualified state programs to administer the rules instead of the selfimplementing approach. 

Ensure an adequate time frame for facilities to come into compliance. 

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without 

the significant and costly impacts of Subtitle C, while (i) allowing the continued use of 

environmentally acceptable existing CCR surface impoundments for the remainder of their 

useful lives; and (ii) supporting the continued beneficial use of CCRs. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA. Finally, the 

commenter is referred to the discussion on EPA’s risk analysis.
668

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

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.6.1.1

Comment Excerpt Text:

An additional critical concern under either Subtitle D options is the short time frame for 

implementation. Under the proposal, the rules would be effective 180 days after promulgation in 

the Federal Register, which would not allow facilities enough time to comply. EPA should 

ensure that states have sufficient time to adopt rules to facilitate their capability to run the 

program rather than having a self-implementing federal rule. 

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

referred to Unit VIII for a discussion of the effective date of the rule, as well as the 

implementation timelines for the regulatory requirements. The Agency has determined that 

there is sufficient time to implement these requirements. The commenter has not provided any 

information that would change the Agency’s decision on this matter. 

Comment Number: EPA-HQ-RCRA-2009-0640-10166-8

Organization1:Consumers Energy Company

Commenter1: Gary A. Dawson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Any Subtitle D option must include a specific mechanism for state implementation of the CCR 

rules. As with other Subtitle D rules, the state agency should be allowed flexibility in the 

regulation of design, construction, and management of landfills, based upon the agency's 

expertise and knowledge of local conditions.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10324-16

Organization1:Public Service Company of New Hampshire (PSNH)

Commenter1: William H. Smagula
669

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As another example, the proposal lacks any mechanism for qualified state programs to step in 

and directly administer the Subtitle D CCR regulations where the state programs meet or exceed 

the federal controls. This could lead to dual enforcement actions for a single violation by way of 

a citizen suit enforcement action in federal court and an independently administered state 

regulatory enforcement action. This redundancy is wasteful and not necessary, as EPA does have 

the authority to implement and enforce Subtitle D rules.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10497-14

Organization1:Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

VII. Subtitle D Regulations Should Provide for State Administration of a CCR Regulatory 

Program

States should continue to be the principal regulatory authorities for the disposal of CCRs. For 

several years, states have successfully implemented EPA’s MSWLF regulations; many under an 

EPA-approved subtitle D program. A significant number of the provisions in the subtitle D prime 

option were modeled on, if not simply copied from, existing provisions in 40 C.F.R. part 258 

applicable to MSWLFs. States, therefore, have extensive knowledge and experience 

implementing these regulations, and should be approved to similarly regulate the disposal of 

CCRs.

Implementation of a CCR program modeled on the existing MSWLF program, including a state 

program approval process, will avoid many of the deficiencies in the subtitle D prime option. 

Given the success of the MSWLF program and the state approval process, one can only assume 

that this approach was not proposed for CCRs for the sole reason that EPA lacks similar 

authority to require state permits, approve state programs, and enforce the regulation of CCR 

landfills and surface impoundments. See 75 Fed. Reg 35194. EPA has attempted to work around 

this limitation by proposing a subtitle D prime regulatory construct that “relies heavily” on 

citizen enforcement. The resulting proposal, however, contains numerous deficiencies that will 

hinder its effectiveness.

The regulation of MSWLFs under Part 258 has been successful. If EPA promulgates federal 
670

regulations for the management and disposal of CCRs, it should do so in this mold. The need for 

additional authority to implement such a program was recognized in a recent Congressional 

Research Service Report to Congress. Linda Luther, Congressional Research Service, Regulating 

Coal Combustion Waste Disposal: Issues for Congress, (Sept. 21, 2010), Attachment “E”. 

Specifically, the report outlined several legislative options for Congress to address the future 

regulation of CCRs, including giving EPA additional authority to regulate CCRs under subtitle D 

similar to the Hazardous and Solid Waste Amendments of 1984 (“HSWA,” P.L. 98-616) added 

to 40 C.F.R. 6949a., that authorized EPA to establish criteria applicable to MSWLFs. [Footnote 

12: The report also recognized the following additional options available to Congress: 1) direct 

EPA to continue to exempt CCRs from regulation as hazardous waste; 2) require states to adopt a 

permit program for CCRs to meet EPA criteria; 3) create a new subtitle under RCRA that would 

specifically address CCRs; and 4) do nothing. Id. at 21.] Id. at 21.

If EPA determines that federal regulation of CCRs is necessary, it should not sacrifice the 

effectiveness and coherency of those regulations by trying to force them into an inappropriate 

regulatory construct. Rather, EPA should seek the necessary authorization from Congress to 

implement the proposed subtitle D prime option in a manner consistent with the existing 

MSWLF program

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10497-18

Organization1:Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

[ATTACHMENT: See original comment for

Attachment 10497.13: Linda Luther, Congressional Research Service, "Regulating Coal 

Combustion Waste Disposal: Issues for Congress," (Sept. 21, 2010) (referenced as Attachment 

"E" in main comment)]

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-10538-10

Organization1:

Commenter1:Raymond von Drehle 

Commenter Type: Private Citizen
671

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

Another problem with regulating coal ash and CCR as a non-hazardous waste is that the 

regulations would not be directly federally enforceable. State regulators are often unduly 

influenced by large public utilities and if the state fails to adopt and enforce adequate regulations 

the only viable way of protecting public health and the environment is through citizen suits, 

which is a wholly untenable way to regulate over 150 million tons of toxic ash in nearly 50 

states. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10739_DEN-051-7

Organization1:Sunflower Electric Power Corporation (Sunflower)

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

States must be given a role in implementing the Subtitle D option. It is essential to recognize and 

allow for individual state administration of the Subtitle D option in order to avoid duplication 

with existing state programs and to provide the Subtitle D option with the direct permitting 

mechanism EPA desires.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to relate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10739_DEN-051-8

Organization1:Sunflower Electric Power Corporation (Sunflower)

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 3.1.2
672

Comment Excerpt Text:

In summary, Sunflower believes the best approach to regulating CCRs nationally is to develop 

Subtitle D regulations, including a required permitting program that can be administered by 

states, with sufficient flexibility to consider local conditions. While this approach would likely 

require a supplemental proposal, it will ensure that EPA will "get it right" providing the Agency 

with the enforcement authority it desires, while avoiding the unnecessary and adverse 

implications of Subtitle C. There is simply no reason to pursue this approach when the Subtitle D 

option offers the same degree of protection without the attendant risks and burdens of Subtitle C.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10751_DEN-063-2

Organization1:Arizona Public Service Company (APS)

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1

Comment Excerpt Text:

A concern we have about both the Subtitle D and D Prime options, however, is the lack of any 

mechanism for states to step in and administer the regulations. Many states, including Arizona, 

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

proposal. So, rather than throw the proverbial baby out with the bath water, APS encourages 

EPA to allow qualified state programs to administer federal Subtitle D rules.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10779_DA-010-1

Organization1:Entergy Services, Inc. (Entergy)

Commenter1:Mark C. Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Let me begin by first stating that Entergy is supportive of federal regulations for Coal 
673

Combustion Residuals (CCRs) under RCRA Subtitle D non-hazardous waste rules though, as 

discussed below, any Subtitle D program must recognize and allow for the proper role of the 

states in administering these rules. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10779_DA-010-4

Organization1:Entergy Services, Inc. (Entergy)

Commenter1:Mark C. Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1 4.1.3

Comment Excerpt Text:

Entergy has evaluated the alternatives contained in EPA’s proposed rule and believes that the 

“Subtitle D Prime” option is the best solution. Unlike the Subtitle C approach, D Prime will 

establish a robust and environmentally protective program for coal ash storage and disposal units 

without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power 

plants, threatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes 

that existing CCR impoundments with sound performance should be allowed to continue to 

operate.

However, Entergy feels that the Subtitle D Prime option, as written, requires improvements, 

including allowing for administration of the federal Subtitle D rules for CCRs by state regulatory 

programs to avoid duplication of federal and state efforts. This would also allow states to enforce 

compliance through a traditional permitting framework.

Entergy also believes that this option does not limit EPA’s enforcement authority since 4010(c) 

of RCRA and similar provisions clearly allow EPA to oversee state rules regulating solid wastes. 

EPA already does this with MSW landfills and non-MSW landfills that may receive 

conditionally exempt small quantity generator hazardous waste. For these reasons, we ask EPA 

to select the Subtitle D prime option in its final rule.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.
674

Comment Number: EPA-HQ-RCRA-2009-0640-11015_CHA-050-4

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1

Comment Excerpt Text:

To conclude, Georgia Power supports dam integrity and a performance based approach for 

management of CCB units with state regulatory oversight and enforcement.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-11195_CHI-026-3

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1:Mark A. Shepherd

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.4

Comment Excerpt Text:

We believe that the States have an important role to play in the regulation of CCRs and should 

take the lead on regulating these materials. The belief, that federal enforceability under the 

Subtitle D option is inadequate to assure that companies manage CCRs safely, is erroneous. The 

regulations will be enforceable by the States and the public. Violators will be subject to 

significant civil penalties, just as they are now for municipal solid waste landfills that have at 

best similar challenges and at worst pose more risk than mono-filled CCR landfills operated 

under subtitle D. 

As published, the proposed rules also have numerous defects and problems, even under the 

Subtitle D option. They seem to have been hurriedly compiled and many parts of the rule are ill 

conceived and contradictive. 

We urge the EPA to withdraw the current proposal and to work to propose regulations under 

Subtitle D that recognize that CCRs can be managed responsibly by States without destroying 

the unique qualities of CCRs that allow them to be beneficially and safely reused. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11286_CHI-064-5

Organization1:Hoosier Energy Rural Electric Cooperative, Inc.

Commenter1:Michalene Reilly
675

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1

Comment Excerpt Text:

Hoosier Energy asks EPA to look at the science and bring back the only possible fair and 

protective standard - regulation under Subtitle D, with an opportunity for states to achieve 

primacy on regulation and enforcement.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-11319_P-029-1

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4 8.6.2

Comment Excerpt Text:

EPA's motivation to propose these rules appears to be based on what EPA has termed "proven 

damage cases" siting two ash impoundment accidents at Kingston, TN and Martins Creek, PA. 

This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse 

impacts to the river, wildlife or human health and that the Tennessee Dept of Health found no 

significant human health impacts due to the Kingston accident. These findings combined with 

the safe management of the vast majority of ash sites and beneficial uses clearly indicate that 

EPA is acting in a capricious manner.

While EPA sites the NRC-NAS Study concerning ash in its preamble it ignores its scientifically 

based factual findings ... which include:

1. Enforceable federal standards should be established to ensure that STATES have specific 

authority and implement adequate safeguards.

2. Primary regulatory mechanisms that should be used to develop enforceable standards are:

• SMCRA, Joint OSM-EPA rules; or RCRA-D rules

Response: The Agency acknowledges and appreciates the comment.
676

Comment Number: EPA-HQ-RCRA-2009-0640-11357_P-071-7

Organization1:Sunbury Generation LP

Commenter1:Teresa Copenhaver

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

While EPA sites the NRC-NAS Study concerning ash in its preamble it ignores its scientifically 

based factual findings...which include: 

1. Enforceable federal standards should be established to ensure that STATES have specific 

authority and implement adequate safeguards. 

2. Primary regulatory mechanisms should be used to develop enforceable standards such as: 

- Surface Mining Control Reclamation Act, Joint Office of Surface Mining and EPA, or the 

Resource Conservation and Recovery Act Subtitle D Rules

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Section 4.2.3 - Proposed mechanisms to facilitate citizen enforcement and oversight (35194-

35195)

Total Number of Submissions: 1

Total Number of Comments: 1

Comment Number: EPA-HQ-RCRA-2009-0640-09728-17

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

g. The EPA is effectively requiring third party certifiers to be regulators, undermining the 

authority of States under the Subtitle D option. If a State has a Subtitle D-like program in place, 

that State agency should suffice for inspection and enforcement. Employing third party P.E.'s in 

such capacities could also expose them to unwarranted liability when defending their decisions.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
677

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Section 4.2.3.1 - Third-party certification: EPA seeks comment on requiring O/O to obtain 

certification by independent PE/hydgist that provisions are properly applied; does this 

provide right balance between establishing sufficient guarantee regulations will be 

protective of HHE and offering facilities sufficient flexibility to feasibly implement 

requirements appropriate to site conditions (35194, 35197, 35223)

Total Number of Submissions: 39

Total Number of Comments: 47

Comment Number: EPA-HQ-RCRA-2009-0640-06040-6

Organization1:Longview Power, LLC

Commenter1: Joseph R. Douglass

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Longview objects to the numerous provisions in the Subtitle D proposal requiring an 

"independent" professional engineer. A professional engineer operates under penalty of losing 

his license, whether "independent" or not. Most environmental regulatory programs require selfreporting, and written certifications by the owner or operator, under penalty of law. This program 

is no different, and the requirement that a 306 Dents Run Road, Morgantown, WV26501 Phone: 

304-291-2850 Fax: 304-291-2851 p. 3 Proposed Coal Combustion Residual Rules Page 3 E PAHQ-RCRA-2009-0640 professional engineer be "independent" would add further cost for 

compliance with no added value. A qualified professional engineer should be eligible to make 

the certifications proposed under Subtitle D, whether "independent" or not.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is conveyed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06196-25

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
678

Comment Excerpt Text:

EPA’s proposal to substitute state oversight with owner or operator paid consultants or 

professionals does not seem like a reliable way to provide for protection of human health or the 

environment.Industry hired professionals that would operate under penalty of losing their 

licenses would depend on state enforcement of such penalties.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06196-34

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.4.7.2 4.4.7.8.2

Comment Excerpt Text:

In addition, Puerto Rico does not regulate the practice of hydrology and there are no provisions 

for state registration of hydrologists. Thus, the elements of the definition of an independent 

registered hydrologist would not be meaningful in jurisdictions that fail to provide for 

registration of hydrologists (35130). This issue is significant because of the particular importance 

of ground water contamination risks posed by CCR land filling or disposal.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06198-7

Organization1:Ameren Corporation

Commenter1: Paul R. Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

VI. Registered Professionals 
679

Ameren supports the concept of using registered professionals to conduct a review of the 

disposal units and certify that design and operating criteria are being met and approve variances 

from the regulatory criteria, if appropriate, for particular CCR disposal units. Clearly, someone 

without the required expertise should not be certifying that surface impoundments or landfills 

have been designed and are operating appropriately. However, we believe that EPA should 

include professional geologists to the list of registered professionals that have the expertise and 

authority to certify compliance with certain of the Subtitle D operating standards. In particular, it 

is appropriate to have professional geologists certify compliance with groundwater monitoring 

standards, just as it is appropriate for PEs to certify compliance with the design of such units. 

We do not agree that PEs, hydrologists, and geologists must be independent (i.e., not an 

employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, even 

though an independent professional will not be an employee of the power producer, they will still 

be hired as an independent consultant of the company. Id. at 35194. Ameren believes that it is 

inappropriate to require that such professionals be independent from the owner/operator of the 

disposal unit, because this condition imposes a significant barrier to meaningful and costeffective compliance with the regulations, while providing little to not assurance that 

"independent' professionals have distinct interests from the owner/operator of the disposal unit. 

Most utilities employ a number of PEs, hydrologists, and geologists who often work exclusively 

with company-managed CCR disposal units. These professionals typically possess the most 

relevant experience and knowledge about these types of disposal units, especially those units 

owned/operated by their employers. Company-employed PEs, hydrologists and geologists are 

subject to the same type of state registration and licensing as those professionals that are not 

employed by these companies and have an equally strong incentive to maintain their licenses in 

good standing as those professionals that are "independent" of the utility or independent power 

producer. Such state-licensing and registration programs will help to ensure that all professionals 

exercise proper judgment about the operation of CCR landfills and surface impoundments. 

Notably, in a very similar regulatory program, EPA decided that not allowing PEs employed by 

facility owner/operators to certify regulatory compliance was inappropriate. EPA's position in 

the Spill Prevention, Control, and Countermeasure or "SPCC" program is equally applicable 

here; there is no reason for EPA to depart from this position in the CCR proposal. Given that 

professionals employed by a company are more familiar with their company's design and 

operation of disposal units, and because state registration and licensing arrangements ensure the 

sound professional judgment of all professionals, we believe that requiring "independence" of 

such professionals will add an unnecessary expense for us. Accordingly, EPA should eliminate 

the proposed requirements that these professionals be "independent" from the company for 

which they are certifying compliance.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.
680

Comment Number: EPA-HQ-RCRA-2009-0640-06203-14

Organization1:Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. Compliance Certifications by In-House Professionals

As discussed above, it is critical that any final Subtitle D program for CCRs allow for 

administration of the Subtitle D regulations by qualified state regulatory programs, such as the 

Arizona Department of Environmental Quality. In those states that EPA decides have adequate 

Subtitle D GGR programs, it would be unnecessary to have registered professionals certify 

compliance with the GGR regulatory provisions on behalf of the regulated owner/operator of the 

unit. In these instances, utilities such as APS would, of course, rely on these professionals for a 

review of all aspects of the design and operation of landfills and surface impoundments, but there 

is no need for the regulatory "certifications" contemplated under the self-implementing Subtitle 

D option if Arizona is conducting a simultaneous and identical review of compliance with the 

regulatory provisions. In those states, however, that do not have qualified programs to administer 

and enforce the federal Subtitle D rules for GGR disposal, APS supports the concept set forth in 

the proposal of using registered professionals to conduct a review of the disposal units and 

certify that design and operating criteria are being met and approve variances from the regulatory 

criteria, if appropriate, for particular CCR disposal units.

With the limited exceptions identified below, APS also supports the proposed credential 

requirements for these professionals. Clearly, someone without the required expertise should not 

be certifying that surface impoundments or landfills have been designed and are operating 

appropriately. However, APS believes that EPA should add professional geologists to the list of 

registered professionals that have the expertise and authority to certify compliance with certain 

of the Subtitle 0 operating standards. In particular, it is appropriate to have professional 

geologists certify compliance with groundwater monitoring standards, just as it is appropriate for 

PEs to certify compliance with the design of such units.

Importantly, APS does not agree that PEs, hydrologists, and geologists must be independent (i.e., 

not an employee) of the owner/operator of the landfill or surface impoundment. This condition 

imposes a significant barrier to meaningful and costeffective compliance with the regulations, 

while providing little to no assurance that "independent" professionals have distinct interests 

from the owner/operator of the disposal unit. APS employs a wide array of PEs and scientific 

staff, including registered geologists. Many of these professional staff provide direct oversight of 

the Company's CCR disposal units, or in other cases provide technical expertise in areas such as 

permitting, hydrology, groundwater monitoring, and regulatory compliance. These professionals 

possess the most relevant experience and knowledge about the Company's disposal units and the 

attendant operational and regulatory requirements. APS-employed professionals are subject to 
681

the same type of applicable state registration and licensing as those professionals employed by 

outside consulting and engineering firms, and have an equally strong incentive to maintain their 

licenses, registrations, etc., in good standing as those professionals that are "independent" of the 

Company. Such state-licensing and registration programs ensure that all professionals exercise 

proper judgment about the operation of CCR landfills and surface impoundments.

Notably, in a very similar regulatory program, EPA decided that not allowing PEs employed by 

facility owner/operators to certify regulatory compliance was inappropriate. In the repromulgation of the Spill Prevention, Control, and Countermeasures ("SPCC") regulatory 

framework, EPA addressed the issue of whether PEs employed by facilities should be allowed to 

certify SPCC plans. The Agency concluded:

We believe that most PEs, whether independent or employees of a facility, being professionals, 

will uphold the integrity of their profession and only certify Plans that meet regulatory 

requirements. We also agree that an inhouse PE may be the person most familiar with the 

facility. EPA believes that a restriction of in-house PE certification might place an undue and 

unnecessary financial burden on owners or operators of facilities by forcing them to hire an 

outside engineer.

67 Fed. Reg. 47042, 47053 (July 17, 2002).

EPA's position in the SPCC program is equally applicable here; there is no reason for EPA to 

depart from this position in the CCR proposal. Given that professionals employed by a company 

are more familiar with their company's design and operation of disposal units, and because state 

registration and licensing arrangements ensure the sound professional judgment of all 

professionals, we believe that requiring "independence" of such professionals would add an 

unnecessary expense for utilities. Accordingly, EPA should eliminate the proposed requirements 

that these professionals be "independent" from the company for which they are certifying 

compliance.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06251-1

Organization1:We Energies
682

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: Certifications by independent registered professional engineers or hydrologists are 

appropriate to provide verification that the requirements of 40 CFR 257 are being met, as 

administered by state regulatory agencies. Professional state registration for engineers and 

hydrologists (and therefore, compliance certification) is a cornerstone of state regulation and 

licensing programs which directly address public safety and compliance issues. These 

certifications have met long standing code requirements from transportation safety, building 

safety and environmental protection. The proposed EPA rulemaking should observe the same 

precepts as other air and water regulations in providing for professional certifications as a 

compliance methodology and recognize that there is no exceptional difference in this regard. In 

regard to EPA’s definition of independent professional engineer or hydrogeologist, the EPA 

should consider the opinion of licensed professional engineers and hydrogeologists, provided 

under their seal, constitutes adequate verification, regardless of their employment or contractual 

relationship with the utility. In Wisconsin, as in other states, professional registration is regulated 

by a state run board which ensures the safe, ethical and competent practice of licensed 

professionals. The EPA, by discounting the seal of any licensed professional engineer or 

hydrogeologist based on their affiliation, is attacking the integrity of state administered 

professional regulation and licensing programs and the professionals themselves. Many utilities 

directly employ registered professionals to manage their CCR disposal facilities. These facility 

managers are normally in the best position to certify all aspects of the operation of the facility.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06252-16

Organization1:Minnkota Power Cooperative, Inc. (Minnkota)

Commenter1:John T. Graves

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should allow registered professional engineers and hydrologists to make compliance 
683

certifications even if they are employees of the owner/operator of the disposal unit. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06254-18

Organization1:Sunflower Electric Power Corporation

Commenter1:Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-142

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

Kentucky strongly disagrees with this approach. Kentucky would modify its special waste 

regulations to include Subtitle D changes, thus giving liability coverage to the utilities and 

professionals, as well as giving citizens advance notice. Prior review by a professional staff at 

the state level eliminates misunderstandings or, worse, any attempts to cut corners. The states 

need a set of regulations similar to MSW landfill Subtitle D rules and funding from EPA.
684

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-19

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.4.5.1.1 4.4.7.2

Comment Excerpt Text:

Independent Profession Engineer or Professional Geologist certification without state oversight:

The Commonwealth has serious concern over allowing independent professionals to self-certify 

complex engineering documents without prior state review. The department urges EPA to 

require a Subtitle D permitting program similar to 40 CFR 239 for MSW landfills be adopted by 

the state before professionals may design and oversee the construction of liners and groundwater 

monitoring wells. This is especially important for variances and alternate designs. Kentucky 

strongly believes that a system of detailed technical regulation, application submittal, application 

review, public notice and final permit is essential to eliminate misunderstandings between the 

consultant, owner or operator, the department, neighbors and the general public. We urge the 

agency to seek additional statutory authority from Congress, if necessary, as described in Part I 

A. in our comments.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-73

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth does support the regulation of coal combustion residuals under the authority 

of Subtitle D. Kentucky does not support certifications by independent professional engineers 
685

and geologists, that would only be reviewed after construction, without a permit application 

review process. If the Subtitle D regulations are adopted, Kentucky will place the technical 

standards in 401 KAR 45:110 for landfills and surface impoundments. 401 KAR Chapter 45 

already provides a permit application process, including technical standards, public notice and 

hearings. The department believes that such a framework is necessary to receive and give input 

from the state and public before the utilities spend a large amount of money on construction. 

Providing technical comments after construction is virtually worthless, and the state may be 

placed in a position of requesting demolition and reconstruction in the worst case, which would 

double or triple construction costs.

Independent professional engineers and geologists would be in a position of increased legal 

liability without the state agency providing support. This process would put more burden on the 

Kentucky Board of Engineers and Land Surveyors; and the Kentucky Board of Registration for 

Professional Geologists to investigate and enforce complaints.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

The commenter is also referred to Units V and IX of the preamble for discussions as to how this 

subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of the 

preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-32

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

10. Qualifications and Independence of Professional Engineers and Hydrologists 

a. Southern Company Concurs in Educational Requirements for Professional Engineer or 

Hydrologist. 

EPA has defined “independent registered professional engineer or hydrologist” to mean—
686

a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or 

surface impoundment who has received a baccalaureate or postgraduate degree in the natural 

sciences or engineering and has sufficient training and experience in groundwater hydrology and 

related fields as may be demonstrated by state registration, professional certifications, or 

completion of accredited university programs that enable that individual to make sound 

professional judgments regarding groundwater monitoring, contaminant fate and transport, and 

corrective action. [Footnote 96: 75 Fed. Reg. at 35130.] 

The design, construction, and operation of Southern Company’s CCB facilities are supervised by 

individuals who exceed the educational requirements proposed by EPA. Southern Company has 

routinely used qualified groundwater scientists since 1986 to certify groundwater monitoring and 

related reports. This protocol has worked well to ensure the veracity of the information and 

sound judgment related to performance standards. 

Southern Company does not support additional registrations by national organizations such as 

the American Institute of Hydrology and the National Ground Water Association, as a 

requirement for a qualified groundwater scientist. Southern Company believes that the 

specialized coursework and training listed by EPA, in conjunction with professional geologist 

and/or professional engineer registrations required by the states is sufficient to qualify a 

groundwater scientist. The registrations by national organizations such as the American Institute 

of Hydrology and the National Ground Water Association are redundant with respect to 

coursework and state professional registrations. 

b. EPA Should Clarify that “Independence” Requirement Does Not Preclude Reliance on 

Corporate Service Company Affiliates. 

EPA has proposed to require certification of an “independent registered professional engineer or 

hydrologist” for various purposes pertaining to CCB facility siting, design and construction. 

[Footnote 97: See id. at 35193-99.] EPA makes the following observation about reliance on 

independent professionals: 

In general, EPA expects that professionals in the field will have adequate incentive to provide an 

honest certification, given that the regulations require that the engineer not be an employee of the 

owner or operator, and that they operate under penalty of losing their license. [Footnote 98: See 

id. at 35194.] 

EPA also expresses concern about the ability of a third-party engineer to provide accurate 

assessments due to the fact that they are hired by an owner or operator. [Footnote 99: Id] EPA 

further asserts that “relying upon third party certifications is not the same as relying upon the 

state regulatory authority, and will likely not provide the same level of ‘independence.’” 

[Footnote 100: Id] 

In our view, reliance on licensed professionals in approving and implementing specific decisions 

and measures pursuant to flexible performance standards is sufficient to ensure veracity of 

information and sound judgments. Licensed professionals risk losing their licenses, and hence 

their livelihoods, if they make unsound and/or unethical judgments. Accordingly, licensed 
687

professionals have very strong incentives to provide accurate information and sound judgments. 

The notion that a licensed professional would be seriously tempted to falsify a certification to 

please the facility owner is completely at odds with our experience. Nevertheless, for a variety of 

reasons, Southern Company maintains a separate service affiliate, i.e., SCS. SCS employees are 

not in the direct “chain of command” at any particular Southern Company facility, including any 

facility of Southern Company’s service territory utilities. They operate under a contract in 

essentially the same manner as a third party consulting firm. That means the SCS expert 

certifying results at a CCB facility of Southern Company is not subject to the supervision of the 

management executives of the company that owns and operates the facility in question. Southern 

Company believes this arrangement meets the “independence” requirement proposed by EPA 

and urges EPA to clarify if that is not the case.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06352-17

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. Under the current proposed subtitle D regulatory option, USEPA requires the certification by 

an independent registered professional engineer providing verification that the provisions of the 

program are properly applied. DP&L does not agree that such certifying professionals must not 

be employees of the owner/operator of the CCR landfill or surface impoundment. USEPA 

appears to believe that employees of CCR management facilities do not possess the relevant 

experience and knowledge to be able to meet the applicable certification requirements or they 

have conflicts of interest preventing them from providing such services in a meaningful manner. 

Such employees are equally subject to the same state registration and licensing obligations as 

independent parties and should be allowed to provide the requisite certification if qualified

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.
688

Comment Number: EPA-HQ-RCRA-2009-0640-06400-14

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.4 4.4.7.7.2 4.8 4.2.3.2 4.2.6 7.4.2 10.5.2.3

Comment Excerpt Text:

Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and 

monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable 

long-term protection. The addition of a 4010 permit for CCR facilities provides the mechanism 

to respond to monitoring results and provide assurance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a 

licensed professional engineer’s judgment will take care of the details in terms of proper CCR 

handling. It makes much more sense for EPA to confer with the utility industry and their service 

providers, like ourselves, to identify specific fundamental performance criteria under a 4010 

permit program. Proper handling of CCRs requires waste analysis to determine the specific 

characteristics of the particular waste stream (e.g., its potential for generation of hydrogen sulfide 

gas), its pH, water content and impact on slope stability, potential for heat generation and 

potential to clog leachate and gas collection lines. There needs to be a plan to handle the material 

in a way that controls dust, and uses the appropriate amount of moisture to control dust. 

Containment standards are necessary for transportation of dry CCRs. 

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to 

assure proper recognition of waste chemistry and physical characteristics. We realize that 

because the record for this rulemaking has not focused on describing good operating practices, 

EPA may need to re-propose a Subtitle D permit program specific to CCR only or to proposed 

modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to 

delay progress, it would make sense for EPA to convene an advisory panel or work group of the 

regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for

example, have developed standards regulating use and disposal of CCRs and would serve as 

resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, 

General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis 

requirements, permeability requirements, distance to groundwater, mixture requirements, 

application and compaction requirements, monitoring, storage requirements, general operating 

standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental 

Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for 

CCR mixtures).] and experts in affected community and environmental groups. This group could 

engage in the kind of discussion that would allow EPA to re-propose promptly a fully developed 

standard. 

Response: The Agency acknowledges and appreciates the comment, the commenter is 
689

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06409-18

Organization1:State of Alaska

Commenter1: Kristin J. Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

3. The proposed 40 CFR 257 subpart D regulations assign the responsibility for certifying the 

adequacy of the design, operation, monitoring, and closure of CCR landfills to independent 

registered professional hydrologists or engineers rather than to state regulatory agencies. The 

regulations are also designed "so that facilities are able to implement the standards without 

interaction with regulatory officials". [Footnote 12: Federal Register, Volume 75, No. 118, June 

21, 2010, page 35211.] The ADEC disagrees with this concept because the independent 

professional hydrologists or engineers who provide the required certification will be contracted 

by the facility owner/operator. At that point, the hydrologist or engineer is no longer truly 

"independent". This creates a conflict of interest in which those who do the certifying are paid by 

those who need the certification.

The proposed regulations also create a confusing situation in which CCR landfill owners and 

operators will need to design, build, operate, and close their facilities in compliance with both 

Alaska's permitting program and the federal regulations. However, because the proposed Subtitle 

D regulations can be implemented without interaction with the ADEC, it is conceivable that a 

CCR landfill could be built without any contact with the ADEC. In that respect, the proposed 

Subtitle D regulations undermine the ADEC's role as the regulatory authority for Subtitle D 

disposal facilities in Alaska.

The ADEC also notes that deferring to paid consultants to certify designs and plans that 

otherwise fall under state Subtitle D permitting programs contradicts the EPA's position 

regarding state Subtitle D permitting programs as stated in its proposed rule regarding the 

Identification Of Non-Hazardous Secondary Materials That Are Solid Waste. In that proposed 

rule, the EPA states that "the states are the lead Agencies for implementing the non-hazardous 

waste programs and, as such, the Agency wanted to make sure that state programs are not 

adversely affected by any decisions that are made by EPA, noting that we see a benefit to 

deferring to state decisions, which are able to consider site-specific information.” [Footnote 13: 

Federal Register, vol. 75, no. 107, June 4, 20 10, page 31855.] The self implementing regulations 

of the proposed Subtitle D option that require no interaction with state regulatory officials 

suggest an entirely different intent.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
690

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06409-21

Organization1:State of Alaska

Commenter1: Kristin J. Ryan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.4.5.1.1 4.5

Comment Excerpt Text:

In contrast, lining CCR landfills and surface impoundments will achieve the goal of minimizing 

damage cases associated with CCR disposal facilities. Since both of the proposed options include 

the same design requirements, both options will yield the same outcome. As such, the Subtitle C 

option is again seen to be unnecessary. The ADEC therefore supports implementation of the 

Subtitle D option with the added provision for alternative liner designs and without the reliance 

upon design certifications by non-regulatory entities. The ADEC encourages the EPA to seek the 

necessary revisions to RCRA that will allow CCR disposal facilities to be regulated under the 

existing 40 CFR 258 regulations and thus be subject to EPA-approved state permitting programs.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-44

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 
691

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 4.4.5.1.1

Comment Excerpt Text:

EPA requests input on pages 35194 & 35197 of the preamble on whether independent 3rd party 

PE is sufficient guarantee that regulationss will be protective and whether other mechanisms 

would provide facility flexibility and/or verification. We do not agree with a self-implementing 

approach in this proposed rule and believe that there is substantial value in a site investigation or 

siting process and State and/or federal agency review. Landfills are similar in magnitude to large 

public works projects, in that detailed review by a building permit review engineer is necessary 

to protect the public interest. The self-implementing nature of the proposed rule is not 

sufficiently flexible or protective. 

We do not agree with the assertion that an independent 3rd party PE is a sufficient guarantee that 

solid waste disposal facilities are adequately designed, constructed, operated, or closed. Our 

concern is based on experience dealing with owners, contractors, and consultants, both in design 

and in construction. EPA states in the Preamble that it is concerned about the lack of uniformity 

or adequacy when comparing State programs. Professional engineers vary in their experience, 

training, and background in the varied aspects of practice that are needed to design and construct 

a solid waste facility. They also operate in a market where the need for jobs and market share 

work against doing more than the lowest common denominator. We have seen the problems that 

can occur if owners of waste disposal facilities select engineering firms that are small, 

inexperienced, or operating outside of their past professional practice. We do not believe that 

leaving decisions about acceptability of design or construction solely in the hands of an 

consulting engineer employed by the landfill owner is adequate. 

Landfills are large earthwork structures, and earthwork construction is difficult, time-consuming, 

and subject to delays due to weather and availability of equipment and materials, all of which 

results in considerable pressure to complete projects. This can lead to shortcuts that are not 

advantageous. We find that interaction between regulatory staff, landfill owners, and technical 

consultants is essential to assure that landfill construction meets the intent of the facility design. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 
692

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06425-7

Organization1:City of Chesapeake, Virginia

Commenter1: Amar Dwarkanath

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Chesapeake also opposes the use of independent, private sector professionals retained by the 

producers and disposers or CCR to predict whether specific beneficial use projects would 

endanger the human health or environment. The use of independent professionals to monitor 

compliance issues was another specific topic on which the EPA specifically requested comment. 

In this case, monitoring by the private sector is not well documented and may have been 

deficient at key implementation points, and oversight during the construction of the site by state 

regulators was minimal. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06529-55

Organization1:NiSource Corporate Services

Commenter1: Dale A. Helmers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Use of Registered Professional Engineers 

In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary 

to have registered professional engineers or hydrologists certify compliance with the CCR 

regulatory provisions. In those states, however, that do not have qualified programs to administer 

and enforce the federal Subtitle D rules, NiSource generally supports the concept set forth in the 
693

proposal of using registered professionals to certify compliance with various components of the 

rule. However, NiSource believes that EPA should not limit the list of registered professionals 

that have the expertise and authority to certify compliance with certain components of the rule. 

In particular, it is appropriate to have professional geologists certify compliance with 

groundwater monitoring standards, just as it is appropriate for professional engineers to certify 

compliance with the design of such units. EPA should review each requirement to determine 

whether the most appropriate professional was identified and specifically add professional 

geologists “or other qualified environmental professional” to the list set forth in Section 

257.91(e)(2). 

NiSource does not agree that professional engineers, hydrologists, geologists and other qualified 

environmental professionals must be independent (i.e., not an employee) of the owner/operator 

of the landfill or surface impoundment. NiSource believes it is inappropriate to require that such 

professionals be independent from the owner/operator of the disposal unit, because this condition 

imposes a significant barrier to meaningfully and cost-effectively complying with the 

regulations, while providing little to no assurance that “independent” professionals have distinct 

interests from the owner/operator of the disposal unit. 

These professionals, whether employees or independent contractors, are all subject to state 

registration and licensing and have a strong incentive to maintain their licenses in good standing. 

Such state-licensing and registration programs will help to ensure that all professionals exercise 

proper judgment about the operation of CCR landfills and surface impoundments. Accordingly, 

EPA should eliminate the proposed requirements that these professionals be “independent” from 

the company for which they are certifying compliance. This would be consistent with EPA’s 

approach to this issue under its Spill Prevention, Control, and Countermeasure requirements

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06532-44

Organization1:Southern Illinois Power Cooperative

Commenter1: Leonard F. Hopkins

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
694

Comment Excerpt Text:

Use of Registered Professional Engineers 

In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary 

to have registered professional engineers (“PEs”) or hydrologists certify compliance with the 

CCR regulatory provisions. In those states, however, that do not have qualified programs to 

administer and enforce the federal Subtitle D rules, SIPC generally supports the concept set forth 

in the proposal of using registered professionals to certify compliance with various components 

of the rule. However, SIPC believes that EPA should not limit the list of registered professionals 

that have the expertise and authority to certify compliance with certain components of the rule. 

EPA should review each requirement to determine whether the most appropriate professional 

was identified and specifically add professional geologists to the list set forth in Section 

257.91(e)(2). 

SIPC does not agree that PEs, hydrologists and geologists must be independent (i.e., not an 

employee) of the owner/operator of the landfill or surface impoundment. SIPC believes it is 

inappropriate to require that such professionals be independent from the owner/operator of the 

disposal unit, because this condition imposes a significant barrier to meaningfully and costeffectively complying with the regulations, while providing little to no assurance that 

“independent” professionals have distinct interests from the owner/operator of the disposal unit. 

These professionals, whether employee or independent contractors, are all subject to state 

registration and licensing and have a strong incentive to maintain their licenses in good standing. 

Such state-licensing and registration programs will help to ensure that all professionals exercise 

proper judgment about the operation of CCR landfills and surface impoundments. Accordingly, 

EPA should eliminate the proposed requirements that these professionals be "independent" from 

the company for which they are certifying compliance

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06541-9

Organization1:Large Public Power Council (LPPC)

Commenter1: Brian H. Moeck, LPPC Environmental Task Force

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

• EPA should modify other elements of the Subtitle D co-proposal Although LPPC supports the 
695

Subtitle D co-proposal in general, and the D-prime option in particular, there are certain elements 

of the Subtitle D approach that should be modified. First, EPA has proposed that facilities must 

verify their compliance with numerous design and operating requirements by obtaining a 

certification from an independent registered professional engineer. EPA asserts that such 

certifications are necessary for two reasons: first, in order for EPA “to conclude that these 

performance standards will meet the RCRA section 4004 protectiveness standard” of ensuring 

“no reasonable probability of adverse effects”; and second, “as a mechanism to facilitate citizen 

oversight and enforcement.” Id. at 35194. Although LPPC does not object to a certification 

requirement per se, it is unduly burdensome to require facilities who have registered professional 

engineers on staff to incur the additional expense of hiring outside third parties to provide the 

certifications, particularly for annual inspections. There is no reason to believe that a registered 

professional engineer will compromise his/her professional standards and responsibilities, will 

risk the legal consequences of submitting false statements, or will jeopardize his/her professional 

license, merely because he/she is performing his/her professional services on behalf of his/her 

own employer. Indeed, EPA acknowledges that even a third party engineer “will still have been 

hired by the utility.” Id.

Moreover, to the extent that EPA will be relying on a certification to conclude that a site-specific 

deviation from technical criteria still meets applicable performance standards, the affiliation of 

the registered professional engineer providing the certification should not matter. The same is 

true with respect to EPA’s desire “to facilitate citizen oversight and enforcement.” As a practical 

matter, facilities will likely hire third party engineering firms to design new liner and leachate 

collection systems, as well as new groundwater monitoring systems. They will also likely rely on 

third party engineering firms to provide various demonstrations, such as those required under the 

location restrictions, or those required under the groundwater detection monitoring and 

assessment monitoring programs. Facilities would do so either because the scope of services 

required would exceed their in-house capabilities, or because they would prefer to shift the 

responsibility for inadequate or deficient designs to third parties and their insurers. Nevertheless, 

an across-the-board requirement to hire third parties is neither warranted nor justified in the 

record, particularly with respect to annual inspections that would almost certainly be performed 

by qualified facility employees, if available.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06722-20

Organization1:Arkansas Electric Cooperative Corporation (AECC)

Commenter1: Jonathan Oliver

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
696

Comment Excerpt Text:

EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06815-28

Organization1:Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.4.5.2 4.4.7.2 4.4.7.4 4.4.7.8.2

Comment Excerpt Text:

18. EPA broadly solicits comment on the approach of relying on certifications by independent 

registered professional hydrologists or engineers of the adequacy of actions taken at coal-fired 

utilities to design and operate safe waste management systems. 

Michigan currently has regulations that require state review and approval of design plans and 

construction certifications of solid waste disposal facilities. These requirements include a 

certification by registered professional engineers. Our rules would remain in place and require an 

additional and potentially conflicting requirement with the proposed Subtitle D rule. Michigan 

would prefer that any rule adopted retain the state's oversight role for CCR facilities, rather than 

relying on self-certification by registered professionals.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.
697

Comment Number: EPA-HQ-RCRA-2009-0640-06956-12

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. EPA Should Allow Registered Professional Engineers And Hydrologists To Make 

Compliance Certifications Even If They Are Employees Of The Owner/Operator Of The 

Disposal Unit

It is critical that any final Subtitle D program for CCRs allow for administration of the Subtitle D 

regulations by qualified state regulatory programs. In those states that EPA decides have 

adequate Subtitle D CCR programs, it will be unnecessary to have registered professional 

engineers ("PEs") or hydrologists certify compliance with the CCR regulatory provisions on 

behalf of the regulated owner/operator of the unit. Electric power producers will, of course, rely 

on these professionals for a review of all aspects of the design and operation of landfills and 

surface impoundments, but there is no need for the regulatory "certifications" contemplated 

under the self-implementing Subtitle D option if a state is conducting a simultaneous and 

identical review of compliance with the regulatory provisions. In those states, however, that do 

not have qualified programs to administer and enforce the federal Subtitle D rules for CCR 

disposal Tri-State G&T supports the concept set forth in the proposal of using registered 

professionals to conduct a review of the disposal units and certify that design and operating 

criteria are being met and approve variances from the regulatory criteria, if appropriate, for 

particular CCR disposal units. With the limited exceptions identified below, Tri-State G&T also 

supports the proposed credential requirements for these professionals. Clearly, someone without 

the required expertise should not be certifying that surface impoundments or landfills have been 

designed and are operating appropriately. However, Tri-State G&T believes that EPA should add 

professional geologists to the list of registered professionals that have the expertise and authority 

to certify compliance with certain of the Subtitle D operating standards. In particular, it is 

appropriate to have professional geologists certify compliance with groundwater monitoring 

standards, just as it is appropriate for PEs to certify compliance with the design of such units. 

Tri-State G&T does not agree that PEs, hydrologists and geologists must be independent (i.e., 

not an employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, 

even though an independent professional will not be an employee of the power producer, they 

will still be hired as an independent consultant of the company. Tri-State G&T believes it is 

inappropriate to require that such professionals be independent from the owner/operator of the 

disposal unit, because this condition imposes a significant barrier to meaningfully and costeffectively comply with the regulations, while providing little to no assurance that "independent" 

professionals have distinct interests from the owner/operator of the disposal unit. 

Utilities and independent power producers typically employ a wide array of PEs and scientific 

staff. Most utilities employ a number of PEs, hydrologists, and geologists who often work 
698

exclusively with company-managed CCR disposal units. These professionals typically possess 

the most relevant experience and knowledge about these types of disposal units, especially those 

units owned/operated by their employers. Company-employed PEs, hydrologists and geologists 

are subject to the same type of state registration and licensing as those professionals that are not 

employed by these companies and have an equally strong incentive to maintain their licenses in 

good standing as those professionals that are "independent" of the utility or independent power 

producer. Such state-licensing and registration programs will help to ensure that all professionals 

exercise proper judgment about the operation of CCR landfills and surface impoundments. 

Notably, in a very similar regulatory program, EPA decided that not allowing PEs employed by 

facility owner/operators to certify regulatory compliance was inappropriate. In the repromulgation of the Spill Prevention, Control, and Countermeasures regulatory framework, EPA 

addressed the issue of whether PEs employed by facilities should be allowed to certify SPCC 

plans. The Agency concluded:

We believe that most PEs, whether independent or employees of a facility, being professionals, 

will uphold the integrity of their profession and only certify Plans that meet regulatory 

requirements. We also agree that an in-house PE may be the person most familiar with the 

facility. EPA believes that a restriction of in-house PE certification might place an undue and 

unnecessary financial burden on owners or operators of facilities by forcing them to hire an 

outside engineer.

EPA's position in the SPCC program is equally applicable here and there is no reason for EPA to 

depart from this position in the CCR proposal. Given that professionals employed by a company 

are more familiar with their company's design and operation of disposal units, and because state 

registration and licensing arrangements ensure the sound professional judgment of all 

professionals, we believe that requiring "independence" of such professionals will add an 

expense for utilities without a benefit. Accordingly, EPA should eliminate the proposed 

requirements that these professionals be "independent" from the company for which they are 

certifying compliance

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-07533-32

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

NDEQ’s permit program defines a “qualified ground water scientist” in the same manner as 

proposed in EPA’s rule. Reliance on these professionals in implementing the proposed flexibility 
699

of performance standards is appropriate. In addition, if a state implements a permit program with 

these requirements it would be appropriate to allow the additional flexibility for alternative 

standards as allowed for municipal solid waste landfills found in 40CFR Part 258. The citizen 

lawsuit provision would still be available and a state permit program would provide an additional 

level of oversight on the facility and the professionals they utilize.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-10

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1 4.2.2 4.5

Comment Excerpt Text:

For these reasons, Maryland suggests a system like that used for municipal solid wastes under 40 

CFR 258, where States must integrate the federal standards into the State program and seek 

program approval from EPA under 40 CFR 239. This eliminates duplicative requirements and 

allows States to provide detailed technical review by hydrogeologists and engineers of their solid 

and industrial waste permitting units to proposed CCR disposal facilities, to ensure that these 

units are safely designed and operated. This is much more desirable than relying on third-party 

certifications by consultants as would be the case under the proposed RCRA D option, whom 

may not as fully cognizant of the geotechnical conditions that exist in any given area, or be as 

familiar with the historical operating conditions at a particular site. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-23

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
700

Other Sections: 4.2.2 7.4.1 4.5

Comment Excerpt Text:

Maryland suggests a system like that used for municipal solid wastes under 40 CFR 258, where 

States must integrate the federal standards into the State program and seek program approval 

from EPA under 40 CFR 239. This eliminates duplicative requirements, and allows the States to 

provide detailed technical review by hydrogeologists and engineers of their solid and industrial 

waste permitting units to proposed CCR disposal facilities, to insure that these units are safely 

designed and operated. This is much more desirable than relying on third-party certifications by 

consultants, as would be the case under the proposed RCRA D option, whom may not be as fully 

cognizant of the geotechnical conditions that exist in any given area, or be as familiar with the 

historical operating conditions at a particular site.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-49

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 3.1.2 7.4.1 4.5

Comment Excerpt Text:

For the many reasons expressed herein, MDE does not favor regulation under RCRA C, or 40 

CFR 257 as proposed. The Department recommends a system like that used for municipal solid 

wastes under 40 CFR 258, where States must integrate the federal standards into their program 

and seek program approval from EPA under 40 CFR 239. This would eliminate the potential for 

State and federal regulators to work at cross purposes, and facilitate compliance. It would also 

allow the States to provide detailed technical review by hydrogeologists and engineers from the 

solid and industrial waste permitting units to proposed CCR disposal facilities, to ensure that 

these units are safely designed and operated. This is much more desirable than relying on thirdparty certifications by consultants whom may not as fully cognizant of the geotechnical 

conditions that exist in any given area, or be as familiar with the historical operating conditions 

at a particular site, as State government scientists whom work in the area full-time. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.
701

Comment Number: EPA-HQ-RCRA-2009-0640-08220-18

Organization1:PowerSouth Energy Cooperative

Commenter1: Dr. Keith Stephens

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-32

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.4.5.2 4.4.7.2 4.4.7.8.2 4.4.8.4

Comment Excerpt Text:

Ohio supports the approach of relying on certifications by appropriate professionals. Many of 

Ohio EPA’s regulations require such certification as part of permit applications, submittal of 

various documents, and monitoring reports. This type of requirement ensures that the owner has 

relied on persons with the appropriate credentials. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08247-7

Organization1:Tucson Electric Power Company

Commenter1: Erik Bakken
702

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA SHOULD ALLOW REGISTERED PROFESSIONAL ENGINEERS AND 

HYDROLOGIST TO MAKE COMPLIANCE CERTIFICATIONS EVEN IF THEY ARE 

EMPLOYEES OF THE OWNER/OPERATOR OF THE DISPOSAL UNIT 

TEP requests that EPA allow compliance certifications by qualified employees such as registered 

professional engineers and hydrologist. These two groups of professionals are required to only 

certify plans that meet all regulatory requirements. The licensing arrangement for these 

professionals ensures that decisions are based on professional judgments. It makes no sense to 

require a company to use an outside professional when they already have professional staff as 

employees. To not allow companies to utilize professional staff will result in increased costs, 

while not providing any identifiable benefit. TEP requests that EPA allow compliance 

certifications by qualified employees such as registered professional engineers and hydrologist.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-24

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

12 RCRA Subtitle D Proposal Cmnments: 

Professional certifications: A RCRA-D proposal should rely first and foremost on state programs 

where such programs exist and have been proven effective. Absent an effective state program, 

certification by a licensed professional would suffice, although we reject the contention that 

certification by a licensed professional who happens to be employed by the utility is somehow 

less reliable or trustworthy. Licensed professionals are subject to a code of conduct irrespective 

of employer, and are subject to sanction and license revocation for inappropriate actions. EPA 

has previously acknowledged this in the SPCC rulemaking and that same concept applies here. 

Certifications by licensed utility professionals are equally valid and should be accepted. 

However, what EPA is proposing requires the certifying professional to inappropriately take on a 
703

quasi-regulatory and enforcement role which would be better and more appropriately performed 

by the states. We are also concerned that this framework would place the certifying professional 

at great risk of being subject to nuisance lawsuits from project opponents, creating a scenario 

where some professionals may decline to be involved in such reviews. Once again, a RCRA-D 

Prime program designed around state implementation and enforcement offers the best regulatory 

framework.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08787-39

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

ASTSWMO notes that many States require certifications by appropriate registered professionals 

as part of permit applications, submittal of various documents, and monitoring reports. This type 

of requirement ensures that the owner has relied on persons with the appropriate credentials. 

ASTSWMO understands the value of such certifications and supports the proposed requirement. 

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08840-17

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden
704

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. Use of Registered Professional Engineers and Geologists

As EPGA has suggested above, we believe that EPA can apply the necessary sections of RCRA 

(I.e., 4010(c) and 4005(c)) that will allow for state approved programs for administration of the 

proposed CCR disposal requirements under Subtitle D. Furthermore, in those states that have not 

obtained the approval from EPA, the owners and operators of CCR disposal facilities would 

certify compliance with the requirements under the self-implementing Subtitle D option utilizing 

registered professional engineers or geologists. Where the states are approved, it would not be 

necessary for use of a third-party registered engineer or geologist to certify compliance, since the 

states would employ equally qualified individuals to review compliance of permitted facilities. 

EPGA supports this use of registered professionals, as we recognize that someone without the 

necessary expertise would not be qualified to certify compliance with the design and operating 

requirements of the rules.

However, we question the need for independent, third-party, contractors and the restriction of use 

of employees of the owner or operator of the facility. Most owners and operators of CCR 

disposal facilities, typically utilities and independent power producers, employ a number of 

registered professional engineers or geologists, many of which would work exclusively with the 

CCR disposal facility. These company-employed professionals are subject to the same state 

registration and licensing requirements as those independent, third-party professionals. As 

professionals, they would have the same incentives to maintain their licenses in good standing 

with the state authorizing authority. Further, the state authorization would add the necessary 

oversight to ensure that the company employed professionals were held to the same standards as 

the third-party professionals, as those standards relate to the operation of those CCR facilities.

EPA has previously reached a similar conclusion in the re-promulgation of the Spill Prevention, 

Control and Countermeasures (SPCC) regulations, as they addressed the necessity to require 

registered professional engineers to certify SPCC plans. They concluded that registered 

professionals would uphold the integrity of their profession, whether company employed or 

independent, in certifying SPCC plans. They further concluded that the in-house professional 

may be the most familiar with the facility, indicating that they would be the most qualified 

person to certify the Plan. 67 Fed. Reg. at 47042, 47053.

Thus, EPGA suggests that EPA eliminate the requirement that an independent professional 

engineer or geologist be required for the specific certification requirements in the proposed rules.

EPGA further suggests that, in addition to the utilization of registered professional engineers and 

hydrologists, the proposed rules should be revised to also include the use of registered geologists 

and hydrogeologists. These registered professionals would be equally qualified to provide the 

necessary expertise for certification of specific requirements of the proposed rules
705

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08841-31

Organization1:Deseret Generation and Transmission Co-operative

Commenter1: Howard Vickers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit. 

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

to Unit V of the preamble for a discussion of the Agency’s decision to modify the qualifications 

of the individual that must certify an owner or operators technical demonstration. Under this 

rule, EPA is requiring a qualified professional engineer to “certify” rather than the proposed 

rule’s, independent registered professional engineer or hydrologist. The rationale behind this 

decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08855-2

Organization1:Colstrip Energy Limited Partnership (CELP)

Commenter1: R. Lee Roberts

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1

Comment Excerpt Text:

One Size Does Not Fit All Under Subtitle D

CELP notes EPA's concerns about the inconsistency of state regulation under a subtitle D 

determination, but observes that states such as Montana, which are authorized by the EPA to 

administer the RCRA program, already require permits such as CELP's and CELP has operated 

pursuant to such a permit for over 20 years. The State of Montana considered the nature of 
706

CELP's FBC ash in structuring CELP's Groundwater Pollution Control System Permit, and 

consciously decided that a liner was contra-indicated. The appropriateness ofthat determination 

is supported by there having been no affect on ground water quality beneath and around the 

landfill in over 20 years and was entirely consistent with EPA's conclusion discussed above that 

site-specific characteristics could lead to a conclusion that liners are not warranted, for example. 

The broad brush approach now proposed by the EPA under subtitle D would appear to prevent 

states authorized by the EPA to administer RCRA from tailoring permit requirements to the sitespecific characteristics the EPA observed to be warranted in its 2000 Regulatory Determination. 

Assuming EPA proceeds with RCRA subtitle D, regulation of CCR disposal it should 

differentiate programmatically between states authorized by it to administer the RCRA program, 

and states not so authorized. In Montana, permits such as CELP's are issued as a result of a 

process which includes public participation, and contain permit conditions and requirements 

which the state enforces. There is neither a necessity nor reasonable way to accommodate 

layering into that process a requirement of PE certification that a permitee is indeed doing that 

which its state issued permit already requires, and the state already enforces. Such a proposal is 

almost certain to cause a conflict between what the state thinks should be required, and the 

position of a PE who risks losing their license if they don't insist on requiring a standard of 

"highest attainable practice" to be absolutely certain of meeting the EPA's generally undefined 

standard of "good engineering practices." The current EPA proposal creates (in states authorized 

to administer RCRA) a circumstance where any registered Professional Engineer can nullify a 

state regulatory agency determination of appropriate permit conditions and restrictions.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-73

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, EPA has determined that third party certification, notification to the state, and 

placement of information in the operating record provide adequate oversight to the self 

implementing requirements. EPA has failed to adequately explain why this type of oversight is 
707

insufficient in this case.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-78

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In those states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary 

to have registered professional engineers or hydrologists certify compliance with the CCR 

regulatory provisions. In those states, however, that do not have qualified programs to administer 

and enforce the federal Subtitle D rules, PSGC generally supports the concept set forth in the 

proposal of using registered professionals to certify compliance with various components of the 

rule. However, PSGC believes that EPA should not limit the list of registered professionals that 

have the expertise and authority to certify compliance with certain components of the rule. In 

particular, it is appropriate to have professional geologists certify compliance with groundwater 

monitoring standards, just as it is appropriate for professional engineers to certify compliance 

with the design of such units. EPA should review each requirement to determine whether the 

most appropriate professional was identified and specifically add professional geologists to the li 

st set forth in Section 257.91(e)(2).

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 
708

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09274-16

Organization1:RRI Energy Inc.

Commenter1: S. Dixon

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

C. Company-Employed Professional Engineers and Geologists Are Acceptable

RRI Energy endorses the requirement that certain studies or evaluations must be prepared by a 

Professional Engineer (PE) or Geologist (PC). These individuals have the necessary training and 

experience to provide guidance and evaluation of critical assessments associated with the site 

selection and operation of a landfill.

However, RRI disagrees that such an individual must be independent (i.e., not an employee) of 

the owner! operator of the landfill or surface impoundment. Requiring that such professionals be 

independent from the owner/operator of the disposal unit, imposes a significant barrier to 

meaningfully and cost effectively complying with the regulations, while providing little to no 

assurance that "independent" professionals have distinct interests from the owner! operator of the 

disposal unit.

RRI Energy relies on the expertise of PEs employed by the company as well as "independent" 

consultants. In fact, the company employs a PE who works exclusively with company-managed 

CCR disposal units - certifying a variety of operational reports and overseeing operations, 

including the installation of liner systems. Although independent PEs provide assistance, which 

is invaluable since the company operates seven CCR landfills, the company-employed PE 

possesses the most relevant experience and knowledge about these sites. Company-employed 

PEs are obviously subject to the same type of state registration and licensing as those 

professionals that are not employed by RRI Energy and have an equally strong incentive to 

maintain their licenses in good standing as those professionals that are "independent" of the 

company .. PADEP requires that the CCR landfill permit application, facility construction and 

annual operating report be certified by a professional engineer whom is a Registered Professional 

Engineer in accordance with the Pennsylvania Professional Engineer's Registration Law. The 

certification carries signification penalties, including the possibility of fines and imprisonment, 

for submitting false information or withholding pertinent information. As such, state-licensing 

and registration programs and P ADEP requirements help to ensure that all professionals 

exercise proper judgment about the operation of CCR landfills and surface impoundments.

Such state-licensing and registration programs help to ensure that all professionals exercise 

proper judgment about the operation of CCR landfills and surface impoundments.
709

Interestingly, EPA reached the same conclusion in the SPCC regulatory program when it decided 

that not allowing PEs employed by facility owner/operators to certify regulatory compliance was 

inappropriate.

We believe that most PEs, whether independent or employees of a facility, being professionals, 

will uphold the integrity of their profession and only certify Plans that meet regulatory 

requirements. We also agree that an in-house PE may be the person most familiar with the 

facility. EPA believes that a restriction of inhouse PE certification might place an undue and 

unnecessary financial burden on owners or operators of facilities by forcing them to hire an 

outside engineer, [Footnote 10: 67 Fed. Reg. 47042, 47053 Guly 17, 2002).]

Therefore, EPA should eliminate the proposed requirements that these professionals be 

"independent" from the company for which they are certifying compliance

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-22

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As a practical matter, facilities will likely hire third party engineering firms to design new liner 

and leachate collection systems, as well as new groundwater monitoring systems. They will also 

likely rely on third party engineering firms to provide various demonstrations, such as those 

required under the location restrictions, or those required under the groundwater detection 

monitoring and assessment monitoring programs. Facilities would do so either because the scope 

of services required would exceed their in-house capabilities, or because they would prefer to 

shift the responsibility for inadequate or deficient designs to third parties and their insurers. 

Nevertheless, an across-the-board requirement to hire third parties is neither warranted nor 

justified in the record, particularly with respect to annual inspections that would almost certainly 

be performed by qualified facility employees, if available.
710

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09427-18

Organization1:San Miguel Electric Cooperative, Inc. (San Miguel)

Commenter1: Joseph G. Eutizi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09951-22

Organization1:Full Circle Solutions, Incorporated

Commenter1: Robert J. Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
711

Comment Excerpt Text:

EPA broadly solicits comment on the approach of relying on certifications by independent 

registered professional hydrologists or engineers of the adequacy of actions taken at coal-fired 

utilities to design and operate safe waste management systems.

We generally agree that the use of professional engineer certifications is proper for the design 

and operation of safe waste management systems. However, we disagree with need for 

"independent" professional engineers . In-house engineers have the resources and background to 

design the best management systems. In many cases, independents would be less qualified to 

review and approve utility plans. Professional Engineers do not put their license and livelihood 

on the line.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10166-10

Organization1:Consumers Energy Company

Commenter1: Gary A. Dawson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The owner/operator's Registered Professional Engineers, hydrogeologists, geologists and other 

scientists should be authorized to certify compliance in their areas of expertise . EPA has no 

basis for limiting the practice of licensed professionals.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 
712

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-52

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

E. EPA Should Allow Registered Professionals To Make Compliance Certifications Even If 

They Are Employees Of The Owner/Operator Of The Disposal Unit

As discussed above, it is critical that any final Subtitle D program for CCRs allow for 

administration of the Subtitle D regulations by qualified state regulatory programs. In those 

states that EPA decides have adequate Subtitle D CCR programs, it will be unnecessary to have 

registered professionals certify compliance with the CCR regulatory provisions on behalf of the 

regulated owner/operator of the unit. Electric power producers will, of course, rely on these 

professionals for a review of all aspects of the design and operation of landfills and surface 

impoundments, but there is no need for the regulatory “certifications” contemplated under the 

self-implementing Subtitle D option if a state is conducting a simultaneous and identical review 

of compliance with the regulatory provisions. In those states, however, that do not have qualified 

programs to administer and enforce the federal Subtitle D rules for CCR disposal, USWAG 

supports using registered professionals to conduct a review of the disposal units and certify that 

design and operating criteria are being met and to approve variances from the regulatory criteria, 

if appropriate, for particular CCR disposal units. With the limited exceptions identified below, 

USWAG also supports the proposed credential requirements for these professionals. Clearly, 

someone without the required expertise should not be certifying that surface impoundments or 

landfills have been designed and are operating appropriately. However, USWAG believes that 

EPA should add professional geologists to the list of registered professionals that have the 

expertise and authority to certify compliance with certain of the Subtitle D operating standards. 

In particular, it is appropriate to have professional geologists certify compliance with 

groundwater monitoring standards, just as it is appropriate for PEs to certify compliance with the 

design of such units.

USWAG does not agree that PEs, hydrologists, and geologists must be independent (i.e., not an 

employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, even 

though an independent professional will not be an employee of the power producer, they will still 

be hired as an independent consultant of the company. Id. at 35194. USWAG believes that it is 

inappropriate to require that such professionals be independent from the owner/operator of the 

disposal unit, because this condition imposes a significant barrier to meaningful and costeffective compliance with the regulations, while providing little to no assurance that 

“independent” professionals have distinct interests from the owner/operator of the disposal unit.
713

Utilities and independent power producers typically employ a wide array of PEs and scientific 

staff. Most utilities employ a number of PEs, hydrologists, and geologists who often work 

exclusively with company-managed CCR disposal units. These professionals typically possess 

the most relevant experience and knowledge about these types of disposal units, especially those 

units owned/operated by their employers. Company-employed PEs, hydrologists and geologists 

are subject to the same type of state registration and licensing as those professionals that are not 

employed by these companies and have an equally strong incentive to maintain their licenses in 

good standing as those professionals that are “independent” of the utility or independent power 

producer. Such state-licensing and registration programs will help to ensure that all professionals 

exercise proper judgment about the operation of CCR landfills and surface impoundments.

Notably, in a very similar regulatory program, EPA decided that not allowing PEs employed by 

facility owner/operators to certify regulatory compliance was inappropriate. In the repromulgation of the Spill Prevention, Control, and Countermeasures (“SPCC”) regulatory 

framework, EPA addressed the issue of whether PEs employed by facilities should be allowed to 

certify SPCC plans. The Agency concluded:

We believe that most PEs, whether independent or employees of a facility, being professionals, 

will uphold the integrity of their profession and only certify Plans that meet regulatory 

requirements. We also agree that an inhouse PE may be the person most familiar with the 

facility. EPA believes that a restriction of in-house PE certification might place an undue and 

unnecessary financial burden on owners or operators of facilities by forcing them to hire an 

outside engineer.

67 Fed. Reg. 47042, 47053 (July 17, 2002).

EPA‘s position in the SPCC program is equally applicable here; there is no reason for EPA to 

depart from this position in the CCR proposal. Given that professionals employed by a company 

are more familiar with their company‘s design and operation of disposal units, and because state 

registration and licensing arrangements ensure the sound professional judgment of all 

professionals, we believe that requiring “independence” of such professionals will add an 

unnecessary expense for utilities. Accordingly, EPA should eliminate the proposed requirements 

that these professionals be “independent” from the company for which they are certifying 

compliance.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-55

Organization1:Earthjustice, et. al.
714

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.2

Comment Excerpt Text:

In the present proposed rule, EPA has proposed a complicated scheme involving certifications by 

“independent professional engineers” who must determine if technical design standards are met, 

alternate performance standards are adhered to, proper notifications submitted, adequate 

demonstrations made, and ultimately, if statistically significant contamination is detected. To 

determine compliance with the proposed regulations, state regulators must evaluate this 

avalanche of complex certifications. Given the complete absence of state oversight of the 

existing subtitle D criteria, it is unreasonable for EPA to credit the viability of this scheme. EPA 

cannot reasonably rely on states to verify extensive paperwork fueled by “self-implementing 

regulations” and “independent” engineers working for the regulated parties in order to enforce 

the criteria effectively--especially given state funding constraints.

Second, EPA itself admits that in most cases, states will do no such thing. In the preamble, EPA 

comments that the considerably lower cost for subtitle D regulations in comparison to subtitle C 

results from a difference in the expected compliance rate, not from a difference in required 

engineering controls. EPA states “[t]he main differences in cost are based on the assumption that 

there will be less compliance or slower compliance under a RCRA subtitle D option. [Footnote 

337: 75 Fed. Reg. 35139. EPA states, “The main differences in cost are based on the assumption 

that there will be less compliance or slower compliance under a RCRA subtitle D option.]. 

Remarkably, EPA methodically calculates the estimated magnitude of this noncompliance, and it 

is substantial. As spelled out in EPA’s Regulatory Impact Analysis with great specificity, EPA 

anticipates that only 52 percent of the coal ash in the U.S. will be generated in states that will 

adopt and enforce the subtitle D criteria. By EPA’s count, over 67 million tons of toxic ash will 

escape regulation each year, and this waste is generated in states with the highest disparity in 

race and income of residents living near coal ash dumps. With only 48 percent of coal ash 

generated in the U.S. disposed in states willing to adopt or enforce the regulations, it is 

impossible to meet the statutory standard of “no reasonable probability of adverse effects on 

health or the environment from disposal of solid waste.” [Footnote 338: 42 U.S.C. § 6944(a).]. 

Without criteria being adopted and enforced, the statutory distinction between allowable sanitary 

landfills and prohibited open dumps becomes meaningless. 

In fact, EPA has greatly underestimated projected state noncompliance. Applying EPA’s own 

yardstick that states not currently requiring groundwater monitoring at surface impoundments 

“would not change their practices simply because EPA issued national rules,” [Footnote 339: 

RIA at 124.] the correct calculation of the percentage of coal ash in states without such 

regulatory requirements is 76 percent, not 52 percent. Thus it becomes even more unreasonable 

to adopt the proposed subtitle D option.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
715

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

The commenter also addresses some issues related to the cost benefit analysis. The 

commenter is therefore referred to Unit XII of the preamble and/or the cost benefit analysis 

which is available in the docket supporting this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-66

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

7. Subtitle D’s Reliance On Independent Professional Engineers In Lieu Of Government 

Oversight To Guarantee Regulatory Compliance Cannot Establish A Reasonable 

Probability That There Will Be No Adverse Impacts On Human Health Or The 

Environment.

Subtitle D relies almost entirely on the existence of “independent professional engineers and 

hydrologists” to evaluate a utility’s compliance with subtitle D criteria and inform the state in a 

timely and effective manner when problems arise. Subtitle D relies on utility consultants to 

design an effective monitoring program, to notify the state when groundwater monitoring reveals 

contamination, to design remedial actions, and to certify that cleanup has been successful. 

However, at numerous sites, the performance of experts working for utility companies or private 

landfill owners has not always been timely, forthright or in the public interest. The questionable 

conduct of “independent” professional engineers and hydrologists at three recent coal ash 

contamination sites was revealed in court filings. At the Colstrip, Montana site, the Town of 

Pines Superfund Site in Indiana and the Battlefield Golf Course in Virginia, [Footnote 361: See 

Fentress Families Trust v. Dominion Virginia Power, No. CL09-710 (Va. Cir. Ct.); Sears v. 

Virginia Electric & Power Co., No. Cl09-001914 (Va. Cir. Ct).] experts, working for and with 

the utilities, attempted to hide or obscure evidence of contamination from state regulators. While 

this behavior may not be representative of the consulting industry, there is ample evidence that 

such behavior does exist and that it causes harm to health and the environment. 

In fact, the existence of “independent” professional engineers knowledgeable about the threats 

posed by the unstable dam at the TVA plant in Kingston should be reason enough to reject this 

untenable scheme. If independent consultants could be trusted to make the disclosures necessary 
716

to protect human health and the environment, such consultants would have disclosed the danger 

of a blowout in Tennessee to the State or federal government well before it occurred. In view of 

subtitle D’s complete reliance on “independent” professional engineers for ensuring compliance 

with many critical parts of the regulations, this scheme fails completely to establish the 

probability that there will be no adverse impact on health or the environment.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10739_DEN-051-6

Organization1:Sunflower Electric Power Corporation (Sunflower)

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.3.2

Comment Excerpt Text:

Also, Sunflower would encourage EPA to consider allowing professional engineers (PEs), 

employed by a (utility) company to participate in the permitting process, rather than requiring 

independent PEs and other qualified environmental professionals, to provide the numerous 

certifications specified under the proposed rules. As licensed PEs, they (and their employers) are 

subject to the same professional responsibilities and liability as "independent" PEs.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble

Section 4.2.3.2 - EPA is interested in suggestions for mechanisms other than third-party 

certification (see 4.2.3.1) that might provide facility flexibility and/or verification (35194)

Total Number of Submissions: 11

Total Number of Comments: 13
717

Comment Number: EPA-HQ-RCRA-2009-0640-06196-26

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Industry generators of CCRs should be required to contribute to a fund to be used to promote 

safe handling of CCRs that would enable communities to hire truly independent professionals 

who would provide unbiased expertise. As with other funding schemes, industry contributions to 

the fund could be based on the amount of CCRs generated or coal burned.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06251-8

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: We concur that professionals working in this area, including regulatory staff at the 

state and federal level, should have appropriate education and relevant work experience related 

to the subject. The proposed rule should include a provision that the use of independent 

professional review is not required where a state regulatory program exists and those 

requirements can be met by professional staff,.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06400-14

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company
718

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.4 4.4.7.7.2 4.8 4.2.3.1 4.2.6 7.4.2 10.5.2.3

Comment Excerpt Text:

Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and 

monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable 

long-term protection. The addition of a 4010 permit for CCR facilities provides the mechanism 

to respond to monitoring results and provide assurance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a 

licensed professional engineer’s judgment will take care of the details in terms of proper CCR 

handling. It makes much more sense for EPA to confer with the utility industry and their service 

providers, like ourselves, to identify specific fundamental performance criteria under a 4010 

permit program. Proper handling of CCRs requires waste analysis to determine the specific 

characteristics of the particular waste stream (e.g., its potential for generation of hydrogen sulfide 

gas), its pH, water content and impact on slope stability, potential for heat generation and 

potential to clog leachate and gas collection lines. There needs to be a plan to handle the material 

in a way that controls dust, and uses the appropriate amount of moisture to control dust. 

Containment standards are necessary for transportation of dry CCRs. 

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to 

assure proper recognition of waste chemistry and physical characteristics. We realize that 

because the record for this rulemaking has not focused on describing good operating practices, 

EPA may need to re-propose a Subtitle D permit program specific to CCR only or to proposed 

modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to 

delay progress, it would make sense for EPA to convene an advisory panel or work group of the 

regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for 

example, have developed standards regulating use and disposal of CCRs and would serve as 

resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, 

General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis 

requirements, permeability requirements, distance to groundwater, mixture requirements, 

application and compaction requirements, monitoring, storage requirements, general operating 

standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental 

Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for 

CCR mixtures).] and experts in affected community and environmental groups. This group could 

engage in the kind of discussion that would allow EPA to re-propose promptly a fully developed 

standard. 

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 
719

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06833-10

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1 4.4.7.8.1 4.4.7.9.1 4.4.5.1.2 4.4.3

Comment Excerpt Text:

Significant problems with the Subtitle D options include: unrealistically short closure timeframes 

for CCR surface impoundments that must be closed; unwarranted application of location 

restrictions to existing CCR surface impoundments; inclusion of inappropriate constituents in the 

proposed groundwater monitoring program; failure to allow for alternate liner systems for new 

CCR disposal facilities; failure to allow professional engineers that are employees of the 

owner/operator of the disposal unit to make compliance certifications; and an overly broad 

definition of "CCR Surface Impoundment or impoundment", which inappropriately captures 

impoundments that arc not designed to manage or store CCRs. 

Response: The Agency acknowledges and appreciates this comment, however the commenter 

is referred to other sections (i.e., volumes) of the Response to Comment document that relate 

more directly to these issues. 

Comment Number: EPA-HQ-RCRA-2009-0640-06833-21

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should allow registered Professional Engineers to make compliance certifications even if 

they are employees of the Owner/Operator of the disposal unit. As stated previously, we believe 

that states should be allowed to administer and enforce the federal Subtitle D rule for CCRs. 

However, in the event that the final CCR rules are self implementing and a PE certification is 

required, then we believe that companies should be allowed to use employees of the company 

and not be required to use third parties for the PE certification. Dominion does not agree that 

registered PEs must be independent (i.e., not all employee) of the owner/operator of the landfill 

or surface impoundment. As EPA notes, even though an independent PE will not be an employee 

of the power producer, they will still be hired as an independent consultant of the company. 75 

Fed. Reg. at 35194. We believe that it is inappropriate to require that such PEs be independent 
720

from the owner/operator of the disposal facility, because this condition imposes a significant 

barrier to meaningful and cost-effective compliance with the regulations, while providing little to 

no assurance that 'independent" professionals have distinct interests from the owner/operator of 

the disposal unit. 

Utilities typically employ a wide array of PEs and scientific staff. Most utilities employ a number 

of PEs who often work closely with company-managed CCR disposal facilities. These 

professionals typically possess the most relevant experience and knowledge about these types of 

disposal units, especially those units owned/operated by their employers. Company-employed 

PEs are subject to the same type of state registration and licensing as those PEs that are not 

employed by the company, and have an equally strong incentive to maintain their licenses in 

good standing as those professionals that are "independent" of the company. Such state-licensing 

and registration programs will help to ensure that all professionals exercise proper judgment 

about the operation of CCR landfills and surface impoundments. Notably, in the re-promulgation 

or the Spill Prevention, Control, and Countermeasures (SPCC) regulatory framework, a similar 

regulatory program, EPA concluded the following:

"We believe that most PEs, whether independent or employees of a facility, being professionals, 

will uphold the integrity of their profession and only certify Plans that meet regulatory 

requirements. We also agree that an in-house PE may be the person most familiar with the 

facility. EPA believes that a restriction on in-house PE certification might place an undue and 

unnecessary financial burden on owners or operators of facilities by forcing them to hire an 

outside engineer." EPA's position in the SPCC program is equally applicable here, and there is 

no reason for EPA to depart from this position in the CCR rule. Accordingly, EPA should 

eliminate the proposed requirement that certifying PEs be "independent" from the company for 

which they are certifying compliance. 

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06863-40

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
721

Comment Excerpt Text:

Avista does not agree that PEs, hydrologists, and geologists must be independent (i.e., not an 

employee) of the owner/operator of the landfill or surface impoundment. As EPA notes, even 

though an independent professional will not be an employee of the power producer, they will still 

be hired as an independent consultant of the company. Id. at 35194. Avista believes that it is 

inappropriate to require that such professionals be independent from the owner/operator of the 

disposal unit, because this condition imposes a significant barrier to meaningful and costeffective compliance with the regulations, while providing little to no assurance that 

“independent” professionals have distinct interests from the owner/operator of the disposal unit. 

Utilities and independent power producers typically employ a wide array of PEs and scientific 

staff, hydrologists, and geologists who often work exclusively with company-managed CCR 

disposal units. These professionals typically possess the most relevant experience and knowledge 

about these types of disposal units, especially those units owned/operated by their employers. 

Company-employed PEs, hydrologists and geologists are subject to the same type of state 

registration and licensing as those professionals that are not employed by these companies and 

have an equally strong incentive to maintain their licenses in good standing as those 

professionals that are “independent” of the utility or independent power producer. Such statelicensing and registration programs will help to ensure that all professionals exercise proper 

judgment about the operation of CCR landfills and surface impoundments. 

Notably, in a very similar regulatory program, EPA decided that allowing PEs employed by 

facility owner/operators to certify regulatory compliance was appropriate. In the re-promulgation 

of the Spill Prevention, Control, and Countermeasures regulatory framework, EPA addressed the 

issue of whether PEs employed by facilities should be allowed to certify SPCC plans. The 

Agency concluded: 

We believe that most PEs, whether independent or employees of a facility, being professionals, 

will uphold the integrity of their profession and only certify Plans that meet regulatory 

requirements. We also agree that an in-house PE may be the person most familiar with the 

facility. EPA believes that a restriction of in-house PE certification might place an undue and 

unnecessary financial burden on owners or operators of facilities by forcing them to hire an 

outside engineer. 

67 Fed. Reg. 47042, 47053 (July 17, 2002). 

EPA’s position in the SPCC program is equally applicable here; there is no reason for EPA to 

depart from this position in the CCR proposal. Given that professionals employed by a company 

are more familiar with their company’s design and operation of disposal units, and because state 

registration and licensing arrangements ensure the sound professional judgment of all 

professionals, we believe that requiring “independence” of such professionals will add an 

unnecessary expense. Accordingly, EPA should eliminate the proposed requirements that these 

professionals be “independent” from the company for which they are certifying compliance. 

With the limited exceptions identified below, Avista also supports the proposed credential 

requirements for these professionals. Clearly, someone without the required expertise should not 

be certifying that surface impoundments or landfills have been designed and are operating 

appropriately. However, Avista believes that EPA should add professional geologists to the list 

of registered professionals that have the expertise and authority to certify compliance with 

certain of the Subtitle D operating standards. In particular, it is appropriate to have professional 

geologists certify compliance with groundwater monitoring standards, just as it is appropriate for 

PEs to certify compliance with the design of such units. 
722

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06912-15

Organization1:Sunflower Electric Power Corporation

Commenter1: Paul E. Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Also, SEPC encourages EPA to consider allowing professional engineers (PEs), employed by a 

(utility) company to participate in the permitting process. As licensed PEs, they (and their 

employers) are subject to the same professional responsibilities and liability as “independent” 

PEs.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-07047-28

Organization1:Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GRE feels EPA should allow registered professionals to make compliance certifications even if 

they are employees of the organization owning the disposal unit. When the technical professional 

places the certification on the compliance requirement they are operating to the standards of their 
723

profession. We believe the CCR rules should reflect what was done under the SPCC program for 

certifications.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-79

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

PSGC does not agree that professional engineers, hydrologists and geologists must be 

independent (i.e., not an employee) of the owner/operator of the landfill or surface 

impoundment. PSGC believes it is inappropriate to require that such professionals be 

independent from the owner/operator of the disposal unit, because this condition imposes a 

significant barrier to meaningfully and cost-effectively complying with the regulations, while 

providing little to no assurance that "independent" professionals have distinct interests from the 

owner/operator of the disposal unit.

These professionals, whether employees or independent contractors, are all subject to state 

registration and licensing and have a strong incentive to maintain their licenses in good standing. 

Such state-licensing and registration programs will help to ensure that all professionals exercise 

proper judgment about the operation of CCR landfills and surface impoundments. Accordingly, 

EPA should eliminate the proposed requirements that these professionals be "independent" from 

the company for which they are certifying compliance. This would be consistent with EPA's 

approach to this issue under its Spill Prevention, Control, and Countermeasure requirements.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-21

Organization1:Santee Cooper

Commenter1: Jay Hudson
724

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

It is unduly burdensome to require facilities who have registered professional engineers on staff 

to incur the additional expense of hiring outside third parties to provide the certifications. There 

is no reason to believe that a registered professional engineer will compromise his/her 

professional standards and responsibilities, will risk the legal consequences of submitting false 

statements, or will jeopardize his/her professional license, merely because he/she is performing 

his/her professional services on behalf of his/her own employer. Indeed, EPA acknowledges that 

even a third party engineer "will still have been hired by the utility." Moreover, to the extent that 

EPA will be relying on a certification to conclude that a site-specific deviation from technical 

criteria still meets applicable performance standards, the affiliation of the registered professional 

engineer providing the certification should not matter. The same is true with respect to EPA's 

desire "to facilitate citizen oversight and enforcement."

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10498-18

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1:Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

`g. Flexibility Must be Provided Throughout the Subtitle D Prime Option Similar to 40 C.F.R. 

Part 258

The regulations set forth in 40 C.F.R. part 258 establish the requirements and criteria applicable 

to MSWLFs. In recognition of the need to ensure that these federal regulations provided 

flexibility to reflect state and site-specific conditions, the part 258 requirements established 

alternate performance standards that are enforced by a state permitting process. See 75 Fed. Reg. 

35194. The subtitle D prime option is largely modeled after the part 258 requirements. However, 

in many instances EPA has not carried over the flexibilities provided in 40
725

C.F.R. part 258 because of its inability to directly enforce the subtitle D prime option, require 

state permits, or approve state programs. Indeed, EPA acknowledged that its lack of authority 

“complicates the Agency’s ability to develop regulations that can be effectively implemented and 

tailored to individual site conditions.” 75 Fed. Reg. 35160. EPA has attempted to provide a 

degree of flexibility by allowing facilities to deviate from the minimum requirements of certain 

rule provisions provided that they are certified by an independent registered professional 

engineer or hydrogeologist. The provisions allowing for an alternative certification process, 

however, are limited. Consequently, the subtitle C option does not provide sufficient flexibility 

to address state-specific and sitespecific conditions. At a minimum, the subtitle D prime option 

should include the same flexibilities found in part 258. Such flexibilities were deemed necessary 

to effectively regulate MSWLFs, and there is no reason to believe that they will not be necessary 

to effectively regulate CCR landfills and surface impoundments.

The subtitle D prime option “relies heavily” on citizen enforcement. Id. at 35211. EPA has tried 

to draft a “self-implementing” subtitle D prime option that facilitates, and in some instances 

“increases” citizen enforcement. Id. at 35194, 35208. In many instances, EPA concluded that the 

flexibilities in part 258 would make citizen enforcement “more difficult” and consequently 

omitted them from the subtitle D prime option. Id. at 35205. In other situations, EPA did not 

incorporate some of the flexibilities because, without guaranteed state oversight, they could be 

subject to abuse. See id. at 35197, 35296. The result, however, is a rigid rule that does not allow 

for states or facilities to address site-specific conditions or concerns.

A prime example of a necessary flexibility is the provision allowing the use of an alternative 

liner system which is discussed more fully above in section VI.a.ii. Part 258 requires the 

installation of a composite liner in a MSWLF. 40 C.F.R. § 258.40. However, an approved state 

may evaluate and approve the use of alternative liner systems provided that specified 

concentration values will not be exceeded in the uppermost aquifer at the point of compliance. 

Id. FDEP’s approved subtitle D program allows for the use of a double liner system in place of a 

composite liner system. See Rule 62- 701.400, F.A.C. A number of FCG members have already 

installed double liners at their facilities and others are awaiting permits approving plans to install 

a double liner in the lateral expansion of their existing CCR landfills. As discussed more fully 

above, there are state-specific concerns that lead to the development of this alternative, not least 

of which is the additional protection to groundwater which is afforded by the double liner 

system. By not incorporating this flexibility into the subtitle D prime option EPA is preventing 

the use of equivalent alternative liner systems that are necessary to address state and site-specific 

conditions.[Footnote 15: This will also impact off-site disposal of CCRs. At least one FCG 

member disposes a substantial volume of CCRs in off-site commercial MSWLFs in Florida. 

Proposed Rule indicates that CCRs shipped off-site for disposal must to be sent to a facility that 

meets the requirements of the subtitle D option. 75 Fed. Reg 35210. However, many of the 

MSWLFs in Florida were constructed with double liners in accordance with FDEP regulations. 

Consequently, these facilities will be unable to accept CCRs for disposal.] There is no rational 

basis why MSWLFs constructed in accordance with an EPA-approved state MSWLF program 

should not be able to accept CCRs for disposal. Furthermore, EPA ignores valid state regulations 

that have been developed under an EPA-approved subtitle D program that may easily be 

transferable to CCR management units.
726

The proposed groundwater point of compliance is another provision that demands flexibility for 

states and facilities to modify the proposed rules. As discussed more fully above in section 

VI.a.iii., the FCG believes that the proposed point of compliance at the waste boundary is a 

drafting error. Assuming that EPA intended to carry over the existing part 258 point of 

compliance (i.e., no more than 150 meters from the waste boundary), flexibility is still required 

to reflect existing state regulations promulgated pursuant to 40 C.F.R. § 257.3-4. As noted above, 

several FCG members have FDEP permitted zones of discharge with a point of compliance that 

extends to the property boundary of the facility. In some instances, this may exceed 150 meters. 

Consequently, if the subtitle D prime option is implemented without a provision for an 

alternative point of compliance, some FCG members could be in immediate non-compliance 

despite having operated for many years under a state approved zone of discharge. All of the FCG 

member facilities have extensive groundwater monitoring systems in place that are designed to 

ensure that water quality standards or criteria are not violated outside the zone of discharge. 

Under Florida’s groundwater protection regulations, there have been no off-site impacts to 

drinking water in Florida associated with the operation of CCR landfills or surface 

impoundments. Florida’s groundwater protection program works, and there must be sufficient 

flexibility in the subtitle D prime option to allow for the continued application of these 

regulations. There are numerous other flexibilities that are provided in part 258 that must be 

carried over into the subtitle D prime option.[Footnote 16: For example, 40 C.F.R. §§ 258.40, 

258.50, 258.51, 258.53 - 258.55, 258.57, 258.58, 258.60, 258.61, all provide flexibilities that 

may be utilized by facilities and states.] Flexibility must also be built into the new requirements. 

For example, the subtitle D prime option requires that new CCR landfills and surface 

impoundments and lateral expansions “must be constructed with a base that is located a 

minimum of two feet above the upper limit of the natural water table.” 75 Fed. Reg. 35241 

(proposed 40 C.F.R. § 257.60). This requirement is too restrictive in Florida due to the shallow 

depth of groundwater in many areas. This provision, therefore, must be removed or revised to

provide some flexibility for states such as Florida. Over the years, approved states such as 

Florida, have implemented the part 258 requirements and have utilized the available flexibilities 

to modify the basic part 258 requirements to tailor regulations that address state and site-specific 

concerns while still being protective of human health and the environment. In Florida, many of 

these modifications reflect state groundwater conditions and concerns. It is reasonable to assume 

that such provisions, as applied to CCR landfills and surface impoundments, will also require 

modification. Without these flexibilities, the subtitle D prime option is impractical and will not 

be as effective at regulating CCR disposal as it otherwise might be. At a minimum, approved 

states such as Florida should be allowed to make modifications to the proposed Part 257 

requirements similar to those made to Part 258 requirements.

The proposed certification process, while helpful, is an inadequate substitute for state regulation 

and oversight. As discussed below, rather than try to develop a regulatory construct designed to 

compensate for its lack of authority, EPA should seek appropriate authority from Congress to 

administer a program modeled after the existing MSWLF program, including the ability to 

approve state regulatory programs implementing the CCR regulations.

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

to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
727

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

The commenter is also referred to Unit V of the preamble for a discussion of the Agency’s 

decision to modify the qualifications of the individual that must certify an owner or operators 

technical demonstration. Under this rule, EPA is requiring a qualified professional engineer to 

“certify” rather than the proposed rule’s, independent registered professional engineer or 

hydrologist. The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10498-19

Organization1:Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1:Carl Eldred

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

VII. Subtitle D Regulations Should Provide for State Administration of a CCR Regulatory 

Program

Implementation of a CCR program modeled on the existing MSWLF program, including a state 

program approval process, will avoid many of the deficiencies in the subtitle D prime option. 

Additionally, the approval of state programs will help avoid the unnecessary duplication of 

existing state regulations and regulatory uncertainty associated with a dual regulatory approach.

EPA recognized Congress’ admonition against duplication of efforts by other Federal and state 

agencies when regulating CCRs in the 1993 regulatory determination. 58 Fed. Reg. 42477. In 

1993, EPA found that subtitle C regulations, particularly the need to obtain a subtitle C permit, 

would unnecessarily duplicate existing state regulations. Id. In the 2000 regulatory 

determination, EPA again noted the potential duplication of existing state regulations as a basis 

for not regulating CCRs under subtitle C. The potential for unnecessary duplication of state 

regulation is equally relevant under subtitle D prime regulation of CCRs and even more likely 

given the increasing trend in state regulation of CCR disposal. As noted in section IV.a. above, 

state regulation of CCR disposal has steadily increased since the final regulatory determination 

was published in 1993. Notably, The EPA/DOE Report found that the majority of new landfills 

and surface impoundments are constructed with liners and groundwater monitoring systems.

The 2009 ASTSWMO survey similarly found that the majority of states that generate CCR’s 

have permit programs in place for CCR landfills and surface impoundments. See 75 Fed. Reg. 

35152. Consequently, Congress’s admonition against the duplication of state efforts is even more 

relevant today. Another unwanted consequence of federal regulation will be the uncertainty and 

inconsistency created with facilities having to comply with two regulatory programs (state and 

federal). These concerns are particularly relevant in approved states that operate a modified 

MSWLF program. As noted above, Florida implements an EPA approved MSWLF program that 

has been modified to reflect certain state conditions and concerns. At some facilities, FDEP 
728

applies some of its modified MSWLF regulations to FCG member CCR landfills. In the absence 

of flexibilities allowing similar modifications to the proposed subtitle D prime option, however, 

some of FDEP’s modified regulations may not satisfy the subtitle D prime requirements. The 

task of determining whether such modified state regulations are consistent with the proposed 

subtitle D prime regulations will be difficult and complex, and the inherent uncertainty will 

likely result in unnecessary and costly litigation. Frustratingly, at the end of the day there will be 

no additional environmental benefit associated with this exercise. EPA failed to provide any 

explanation why existing Part 258 regulations, or equivalent state regulations, are not also 

adequate for CCR landfills. If a facility is already complying with some of Florida’s EPAapproved MSWLF requirements, there is no reason why those requirements should not also be 

appropriate for CCR landfills and surface impoundments.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-10739_DEN-051-6

Organization1:Sunflower Electric Power Corporation (Sunflower)

Commenter1:Paul Reynolds

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.3.1

Comment Excerpt Text:

Also, Sunflower would encourage EPA to consider allowing professional engineers (PEs), 

employed by a (utility) company to participate in the permitting process, rather than requiring 

independent PEs and other qualified environmental professionals, to provide the numerous 

certifications specified under the proposed rules. As licensed PEs, they (and their employers) are 

subject to the same professional responsibilities and liability as "independent" PEs.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Additional Discussion on the Agency’s decision to promulgate the term, qualified professional 

engineer rather than the proposed “Independent registered professional engineer or 

hydrologist.

Reliance on Certification by Independent Qualified Professional Engineers
729

As previously discussed, the vast majority of commenters were highly skeptical of a regulatory 

approach that substituted state oversight with an owner or operator hiring a consultant or 

professional, i.e., an independent registered professional engineer or hydrologist, to certify 

compliance with a federal regulatory requirement and posting that information on an internet 

site. More specifically, commenters were concerned that relying almost entirely on 

professional certifications for ensuring regulatory compliance did not seem like a reliable way 

to provide for protection of human health and or the environment. 

As explained in Unit IV.A, EPA is issuing national minimum criteria under subtitle D to put in 

place the technical requirements the Agency has determined are necessary to protect human 

health and the environment from the disposal of CCRs in surface impoundments and landfills, 

at this time, while the Agency completes its Bevill Determination. EPA is relying on the 

certification in this context to partially compensate for one of the more significant limitations 

under the authorities currently applicable to CCRs: the lack of any guaranteed regulatory 

oversight mechanism. However, EPA disagrees that the rules rely "almost entirely" on 

professional engineers to protect human health and the environment. The final rule relies on 

multiple mechanisms to ensure that the requirements in this rule are properly implemented 

and fully adhered to by the regulated community. As one part of this multi-mechanism 

approach, owners or operators must obtain certifications by qualified individuals verifying that 

the technical provisions of the rule have been properly applied and met. However, a more 

significant component supporting EPA's determination that the technical requirements will 

achieve the level of protection required under section 4004(a) is the performance standards 

that the rules lay out. These standards impose specific technical requirements, and, even where 

they provide flexibility, will operate to significantly constrain the facility's activities and 

discretion. The certifications required by the rule supplement these technical requirements, 

and while they are important, they are not the sole mechanism ensuring regulatory compliance.

The rule also contains a number of provisions requiring the owner or operator to document 

their compliance with the rule’s technical requirements, and to post those documents on a 

publically available website in a timely and transparent manner. The rule also requires owners 

or operators to notify State Directors of numerous actions, including that certified 

demonstrations have been completed. This transparency will facilitate citizen and state 

oversight and overall enforcement of the requirements. Finally, the rule establishes specific 

time frames by which these actions must occur, including time frames by which facilities must 

document compliance with the various technical requirements in the rule. Time frames have 

been established for: (1) technical compliance demonstrations made by the owner or operator; 

(2) certifications made by a qualified professional engineer verifying the technical accuracy and 

veracity of the compliance demonstration; (3) notifications made to the State Director; (4) 

submittals (e.g., data, reports and other documentation) to the operating record; and (5) 

postings to the owner or operator’s publicly accessible internet site. Further details pertaining 

to all of these requirements can be found in the Recordkeeping, Notification, and Posting of 

Information to the Internet section of the regulations published in this rule. 

Changes to the Definition of Independent Registered Professional Engineer or Hydrologist
730

EPA proposed to define “independent registered professional engineer or hydrologist” to mean 

a scientist or engineer who is not an employee of the owner or operator of a CCR landfill or CCR 

surface impoundment, who has received a baccalaureate or post-graduate degree in the 

natural sciences or engineering, and who has sufficient training and experience in groundwater 

hydrology and related fields as may be demonstrated by state registration, professional 

certifications, or completion of accredited university programs that enable that individual to 

make sound professional judgment regarding the technical information for which a certification 

under this subpart is necessary. 

Many comments were received on the definition. Some commenters agreed with the proposed 

definition, but most commenters argued that significant changes were needed. These changes 

included removing the requirement that the engineer be “independent,” adding the word 

“qualified,” and limiting the ability to make certifications to “licensed” professional engineers. 

Still other commenters felt that EPA should broaden the qualifications beyond a professional 

engineer or hydrologist, to include geologists, hydrogeologists, groundwater scientists or “other 

qualified environmental professionals” among the individuals able to certify regulatory 

demonstrations. 

By far the issue receiving the most comment was whether the Agency should require a 

professional engineer to be “independent.” Commenters disagreed with EPA that the 

certification must be made by an independent registered professional engineer (i.e., not an 

employee of the owner/operator of the CCR unit). Commenters argued that most utilities 

employ a number of professional engineers that typically possess the most relevant experience 

and knowledge about the unit, and that company-employed engineers and hydrologists were in 

a much better technical position to certify technical provisions of the rule were being met. 

Furthermore, commenters asserted that these professionals would be subject to the same state 

registration and licensing requirements as those not employed by the facility and would have 

an equally strong incentive to maintain their licenses in good standing as those that are 

independent of the utility., These commenters also pointed to several EPA rulemakings in which 

EPA allowed “qualified” professional engineers to make the kind of certifications contemplated 

by this rulemaking, without requiring that they be “independent. ” Commenters also contended 

that state licensing and registration programs help to ensure that all professionals exercise 

proper judgment or “independence” regarding the operation of CCR landfills and CCR surface 

impoundments. Similarly, commenters claimed that a professional engineer without the 

required expertise would refuse to make any certifications for which they were not qualified. 

Some commenters suggested that EPA provide some criteria requiring demonstrated 

experience and training. Commenters also took issue with the fact that the definition focused 

entirely on groundwater hydrology and failed to include training or experience in other areas 

that would also be necessary to effectively certify specific technical criteria of the rule (e.g., 

structural integrity, composite liner design). 

The definition EPA proposed for “independent registered professional engineer or hydrologist,” 

focused on three components that were intended to define the minimum qualifications 

necessary to independently verify that a specific technical standard was met and to provide 
731

sufficient objectivity to reduce the opportunity for abuse. These components were: (1) the 

individual was a scientist or engineer by academic training or education; (2) the individual was 

not an employee of the owner or operator of the CCR disposal unit; and (3) the individual had 

sufficient training in groundwater hydrology or related fields. The proposed definition did not 

require the individual to be licensed professional engineer or hydrologist; instead the Agency 

prohibited the individual providing the certification from being an employee of the owner or 

operator of the CCR unit, reasoning that this requirement would provide some degree of 

independent verification of facility practices.1 The Agency stated that the availability of 

meaningful independent verification was critical to EPA’s ability to conclude that these 

performance standards laid out in the proposed rule would meet the RCRA section 4004 

protectiveness standard.

In the course of developing this final rule, the Agency concluded that it needed to better define 

the connection between the technical requirements of the rule and the technical qualifications 

an individual must possess to certify the demonstrations being made by the owner or operator 

of the CCR disposal unit. In doing so, the Agency looked for direction in the following rules, the 

“Resource Conservation and Recovery Act (RCRA) Burden Reduction Initiative” (71 FR 16826, 

April 4, 2006) and the “Oil Pollution Prevention and Response Non-Transportation-Related 

Onshore and Offshore Facilities Rule (67 FR 47042, July 17, 2002.) In both of these actions, the 

Agency came to similar conclusions. First, that professional engineers, whether independent or 

employees of a facility, being professionals, will uphold the integrity of their profession and 

only certify documents that meet the prescribed regulatory requirements; and that the 

integrity of both the professional engineer and the professional oversight of boards licensing 

professional engineers are sufficient to prevent any abuses. See for example: 67 FR 47084, July 

17, 2002. And second, that in house professional engineers may be the persons most familiar 

with the design and operation of the facility and that a restriction on in-house professional 

certifications might place an undue and unnecessary financial burden on owners or operators 

of facilities by forcing them to hire an outside engineer. 

Reviewing these other regulatory actions and the Agency’s rationale for making its decisions, 

has lead the Agency to a similar conclusion with regard to this rule -- that it is unnecessary to 

require the individual making certifications under this rule to be “independent.” Thus the final 

rule does not prohibit an employee of the entity needing such certification, from making the 

certification, provided they are a professional engineer that is licensed by a state licensing 

board. The personal liability of the professional engineer provides strong support for both the 

 

1 While the definition did not require the independent registered professional engineer or 

hydrologist to be licensed, the preamble did state that EPA expects that professionals in the field will have 

adequate incentive to provide an honest certification, given that the regulations require that the engineer 

not be an employee of the owner or operator of the CCR landfill or CCR surface impoundment, and that 

they operate under penalty of losing their license, implying that the professional was, in fact, licensed. 

This narrative and the title of independent registered professional engineer caused many commenters to 

assume that the certifiers indeed had to be a licensed professional engineers. (75 FR at 35194, June 21, 

2010).
732

requirement that certifications must be performed by licensed professional engineers, and for 

removing the requirement that the engineer be "independent." 

While other commenters argued that the word “independent” should be retained because an 

independent review and certification avoids any potential of conflict of interest, the Agency is 

convinced that an employee of a facility, who is a qualified professional engineer and who has 

been licensed by a state licensing board would be no more likely to be biased than a qualified 

professional engineer who is not an employee of the owner or operator. Moreover, it is not 

clear that an in-house engineer faces a greater economic temptation than an independent 

engineer seeking to cultivate an ongoing relationship with a client. EPA has concluded that the 

programs established by state licensing boards provide sufficient guarantees that a professional 

engineer, regardless of whether he/she is “independent” of the facility, will give a fair technical 

review. 

Moreover, and as an additional protection, the Agency has re-evaluated the performance 

standards throughout the final rule to ensure that the requirements are sufficiently objective 

and technically precise that a qualified professional engineer will be able to certify that they 

have been met. 

The Agency agrees with concerns that a professional engineer may not be qualified to address 

all the varied aspects of CCR landfill and CCR surface impoundment design, and has amended 

the definition to clarify and strengthen the qualifications of the individual authorized to certify 

the technical demonstrations under the rule. In the proposed rule, the Agency did not require 

an independent registered professional engineer to be licensed, only that they be an engineer 

or hydrologist who had received a baccalaureate or post graduate degree in the natural 

sciences with training and experience in groundwater hydrology or a related field. While the 

term “independent registered professional engineer or hydrologist” conveyed to some 

commenters that the individual was in fact “licensed,” the definition in the proposal did not 

require it. Moreover, as noted by commenters, the proposed definition focused primarily on 

hydrogeology expertise and did not include training and experience qualifications necessary to 

accurately certify some of the requirements being promulgated in the rule, e.g., landfill and 

surface impoundment design and construction, structural stability assessments, analysis of 

unstable areas. In reviewing this proposed requirement, the Agency has determined that 

specifying exact qualifications and or experience for the professional engineer is neither 

necessary nor practical, given the range of technical specifications that will require certification. 

EPA has therefore adopted a more succinct requirement focused on the professional engineer 

being qualified to perform the task or certification. 

In making this change, the Agency was again strongly influenced by the “Resource Conservation 

and Recovery Act (RCRA) Burden Reduction Initiative” rule. (71 FR 16826, April 4, 2006). In that 

rule, EPA amended the majority of RCRA provisions requiring the certification of an 

“independent, qualified, registered, professional engineer” to substitute the phrase, a 

“qualified professional engineer,” reasoning that a requirement for a qualified professional 

engineer maintains the most important components of any certification requirement: (1) that 
733

the engineer be qualified to perform the task based on training and experience; and (2) that she 

or he be a professional engineer licensed to practice engineering under the title Professional 

Engineer which requires following a code of ethics with the potential of losing his/her license 

for negligence (See 71 FR at 16868.) 

In the “Burden Reduction Rule”the Agency concluded that a professional engineer is able to 

give fair and technical review because of the oversight programs established by the state 

licensing boards that will subject the professional engineer to penalties, including the loss of 

license and potential fines if certifications are provided when the facts do not warrant it. In 

fact, this personal liability of the professional engineer is one of the primary reasons that 

commenters to the “Burden Reduction Rule”supported the idea that RCRA certifications should 

only be done by licensed professional engineers (See 71 FR at 16868). Upon further analysis 

and reflection, the Agency sees no reason to deviate from the position EPA held in the “Burden 

Reduction Rule.” Despite some concerns raised by commenters that problems could occur if an 

owner or operator hires an engineering firm that is small, inexperienced, or operating outside 

of their past professional practice, the Agency continues to believe that with the protections 

afforded by the specific performance standards in this rule and the standards and ethics by 

which a qualified professional engineer will certify technical demonstrations, situations where 

an unqualified or un-licensed engineer certifies a technical demonstration will be avoided. 

Furthermore, it is important to reiterate that state licensing boards can investigate complaints 

of negligence or incompetence on the part of professional engineers, and may impose fines and 

other disciplinary actions, such as cease-and-desist orders or license revocation. (See 71 FR at 

16868). In light of the third party oversight provided by the state licensing boards in 

combination with the numerous recordkeeping and recording requirements established in this 

rule, the Agency is confident that abuses of the certification requirements will be minimized 

and that human health and the environment will be protected.

The Agency wants to make it clear that qualified professional engineers can utilize a team of 

professionals in performing the analyses that underlie these certifications. The Agency is confident that 

in most instances, the basis for certification by a qualified professional engineer will be the result of a 

team of professionals (e.g., geologists, hydrologists, scientists and engineers) who have collectively 

worked together in order to provide the data and analyses necessary for the professional engineer to 

certify the specific demonstration. 

The Agency is convinced that the change to the certification requirements to allow the use of in-house 

expertise will not compromise environmental safety. Professional engineers employed by a facility are 

more familiar with the facility’s particular situation and are in a position to provide more on-site review 

and oversight of the activity being certified. To this end, the Agency is also requiring that the qualified 

professional engineer be licensed in the state in which the CCR unit is located. The Agency has made 

this decision for a number of reasons, but primarily because state licensing boards can provide the 

necessary oversight on the actions of the professional engineer and investigate complaints of negligence 

or incompetence as well as impose fines and other disciplinary actions such as cease-and-desist orders 

or license revocation. Oversight may not be as rigorous if the professional engineer is operating under a 

license issued from another state. 

Finally, the Agency disagrees with comments that professional geologists or geoscientists should be 

added to the list of those professionals that have expertise and authority to certify compliance with 
734

certain RCRA subtitle D regulatory requirements. In developing this final rule, the Agency has reconsidered the qualifications necessary to certify compliance with the technical requirements of the rule 

and is limiting compliance certifications to qualified professional engineers only. While some 

environmental professionals, e.g., hydrologists, geologists may be qualified to make certain 

certifications, we are not convinced that hydrologists or geologists licensed by a state are held to the 

same standards as a professional engineer licensed by a state licensing board. For example, it is unclear 

that hydrologists or geologists are subject to the rigorous testing required by professional engineers or 

that state licensing boards can investigate complaints of negligence or incompetence. Further, 

professional engineers have licensing boards in all 50 states, a standard not achieved by other 

professional disciplines. Consequently, hydrologists, geologists, or other professionals may only perform 

analyses that underlie the certification, but it is the responsibility of a qualified professional engineer to 

make the actual certification. 

Include Professional Geologists to the List of Registered Professionals Who Can Certify

Comment: EPA should include professional geologists/geoscientists (i.e., in addition to 

professional engineers and hydrologists) to the list of registered professionals that have the 

expertise and authority to certify compliance with certain of the RCRA subtitle D operating 

standards. In particular, it is appropriate to have professional geologists certify compliance with 

groundwater monitoring standards, just as it is appropriate for professional engineers to certify 

compliance with the design of such units. 

EPA Response: The Agency disagrees with the commenter that professional geologists or 

geoscientists should be added to the list of those professionals that have expertise and 

authority to certify compliance with certain RCRA subtitle D regulatory requirements. In 

developing this final rule, the Agency has re-considered the qualifications necessary to certify 

compliance with the technical requirements of the rule and is limiting compliance certifications 

to qualified professional engineers only. As previously discussed in this section, the Agency is 

allowing only professional engineers licensed in the state in which the CCR disposal unit is 

located to make technical certifications. While we agree that some environmental 

professionals, e.g., hydrologists, geologists may be qualified to make certain certifications, it is 

imperative that the goals of human health and the environment are maintained. As such, we 

are not convinced that hydrologists or geologists licensed by a state are held to the same 

standards that a professional engineer licensed by a state licensing board would be. For 

example, it is unclear to us that hydrologists or geologists are subject to the rigorous testing 

required by professional engineers or that state licensing boards can investigate complaints of 

negligence or incompetence. State licensing boards for professional engineers, on the other 

hand, may impose fines and other disciplinary actions such as cease and desist orders or license 

revocation. Furthermore, professional engineers have licensing boards in all 50 states, a 

standard not achieved by other professional disciplines. While the Agency agrees with the 

commenter that in many instances hydrologists, geologists, or other professionals may possess 

the necessary qualifications, knowledge, and experience to certify certain technical 

requirements of the rule, their role is limited to performing the analyses that underlies the 

certification. It is the responsibility of a qualified professional engineer to make the actual 
735

certification. As a final matter, as previously explained, the existence of these state licensing 

boards was critical in EPA's decision to allow otherwise qualified facility employees to provide 

the certifications, i.e., remove the qualification that the professional engineer be independent. 

Definition is Lacking Requirement for Expertise in Other Aspects of CCR Disposal

Comment: The proposed definition of independent registered professional engineer or 

hydrologist calls for expertise in groundwater investigation, which is suitable for a hydrologist 

or hydrogeologist, but not enough on issues concerning an engineer, including competence in 

and knowledge of solid waste landfill design, operation and closure, soil and geosynthetic 

materials used in landfill construction, and geotechnical aspects of soils, geosynthetics, solid 

waste, and landfill operations.

EPA Response: In the proposed rule, the Agency put forth the term, “independent registered professional 

engineer or hydrologist” as one who would be qualified to certify that certain technical requirements of 

the rule would be met. The Agency agrees that the definition in the proposal focused primarily on an 

engineer or scientist with sufficient training and experience in groundwater hydrology and did not focus 

on training or experience in other fields that would have more relevance in certifying other technical 

requirements of the rule besides groundwater monitoring (e.g., fugitive dust control, closure, liner 

design, structural stability). This disconnect between the technical requirements of the rule and the 

definition of who is qualified to certify has caused the Agency to re-evaluate both the use of the term 

“independent registered professional engineer or hydrologist” and the requirements necessary in order 

to certify compliance with the technical requirements of the rule. As previously discussed, this reevaluation has lead EPA to the conclusion that there are essentially two criteria necessary to make 

certifications; (1) that the professional is qualified to perform the task; and (2) that she/he is a licensed 

professional engineer (following a code of ethics and the potential of losing his/her license for 

negligence.) Therefore, to remedy this oversight, the Agency is adding the word “qualified” before the 

term professional engineer in identifying those professionals who can certify demonstrations showing 

compliance with the technical requirements of the rule and removing any reference to particular areas 

of expertise. In the final rule, certifications will be made by professional engineers that are qualified to 

perform the task. This means that a professional engineer must be proficient in the area that he/she is 

certifying. This also means that the professional engineer can rely on other professionals, e.g., 

groundwater scientists, hydrologists, structural engineers to provide the underlying technical analysis 

for the specific certification. 

Self-Implementing Framework Puts Certifying Professionals at Risk for Lawsuits.

Comment: What EPA is proposing requires the certifying professional to inappropriately take on 

a quasi-regulatory and enforcement role which would be better and more appropriately 

performed by the states, placing the certifying professional at great risk of being subject to 

nuisance lawsuits from project opponents, creating a scenario where some professionals may 

decline to be involved in such reviews.
736

EPA Response: The commenter has raised a valid concern; several of the performance standards 

in the proposed rule were adapted from part 258, which were designed to operate in the 

context of an approved state program, by a state regulatory authority, rather than a purely 

private entity. In part due to this concern, the Agency has reevaluated the performance 

standards throughout the final rule, and has revised them to ensure that the requirements are 

sufficiently objective and technically precise that a qualified professional engineer will be able 

to certify that they have been met. Finally, the Agency wants to make it clear that qualified 

professional engineers can utilize a qualified team of professionals in performing the analyses 

that underlie these certifications.

Section 4.2.4 - Federal enforcement provisions are needed, including concerns that EPA 

has no authority to implement/enforce proposed Subtitle D

Total Number of Submissions: 88

Total Number of Comments: 100

Comment Number: EPA-HQ-RCRA-2009-0640-00465-5

Organization1:Watauga Watershed Alliance

Commenter1: Gloria Griffith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

We Need Mandatory State Regulations and Federal Enforcement Authority: Most importantly, 

the Subtitle C proposal establishes requirements that must be met. In contrast, despite the 

Subtitle D proposals inclusion of many of the same standards, these standards are legally nothing 

more than suggested guidelines that states may, or may not, choose to follow. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-00465-6

Organization1:Watauga Watershed Alliance

Commenter1: Gloria Griffith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
737

Comment Excerpt Text:

Absence of Mandatory Permits: EPA cannot require that states issue solid waste permits under 

the Subtitle D Option. Permits are the prime enforcement tool of state and federal regulatory 

agencies and are the only mechanism for meaningful public involvement in the siting and 

operation of disposal facilities. Furthermore, requiring facilities to comply with standard permit 

requirements would allow agencies, with citizen involvement, to prevent pollution before it 

occurs, rather than undertaking expensive clean-ups after major damage has occurred.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-01088-2

Organization1:PMI Ash Technologies, LLC (PMI)

Commenter1: Tabitha Monds on behalf of Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

PMI strongly supports providing EPA with additional enforcement authority under Sub-title D 

similar to the authority EPA has for municipal solid waste but PMI does not favor proceeding 

under Sub-title C in any manner even as either a special waste.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-03934-6

Organization1:Kentuckians For The Commonwealth (KFTC)

Commenter1: Nancy L. Reinhart

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
738

Comment Excerpt Text:

It would be outrageous to leave CCR regulation up to the industry and states, which have done a 

poor job thus far, to decide the extent and implementation method for new regulations. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-05774-1

Organization1:

Commenter1: Anonymous

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

I am not qualified to judge on the basis of results of risk assessments and operating experiences 

at waste disposal sites whether the option of regulating disposal of CCRs as solid waste under 

RCRA Subtitle D would provide adequate protection of human health and the environment, or 

whether adequate protection would be provided only if regulation of CCRs as a special class of 

hazardous waste under RCRA Subtitle C were required. However, I believe that a number of 

factors may indicate that regulation of disposal of CCRs as hazardous waste under RCRA 

Subtitle C is the preferred option.

First, I believe it is reasonable to question whether states are capable of providing adequate 

regulatory oversight of disposal of CCRs in landfills or surface impoundments as would be 

prescribed under RCRA Subtitle D. The disaster at the Tennessee Valley Authority's Kingston 

steam plant in Harriman, Tennessee, on December 22, 2008, is a case in point. It appears that the 

State of Tennessee did not have adequate regulatory oversight of surface impoundments at that 

site, in spite of the existence of a National Pollutant Discharge Elimination System (NPDES) 

permit issued under the Clean Water Act.

Second, I believe it is important to consider the levels (concentrations) of hazardous substances, 

primarily metals, in CCRs. If concentrations of hazardous substances are similar to 

concentrations of those substances in other wastes that have been classified as hazardous waste 

under RCRA Subtitle C, it stands to reason that CCRs should be managed as hazardous waste 

when they are not designated for beneficial use.

Third, if EPA has no authority to enforce regulations it establishes under RCRA Subtitle D, what 

is to prevent states from simply ignoring them? As noted by EPA, citizens can file lawsuits to 

compel compliance, but this seems like a terrible way to enforce regulations. As the experience 
739

with Massey Energy Co. and its coal mines in West Virginia clearly demonstrates, companies 

can fend off responses to legal action for a very long time if they are inclined to do so. 

Regulation of disposal of CCRs should be proactive based on the hazards posed by those 

materials, not reactive.

Finally, I believe that perpetual care over disposal facilities is an important issue for CCRs, due 

to their large volumes and persistence of the hazards essentially forever. Although assessments 

of risks to future inadvertent intruders at disposal sites following an assumed loss of institutional 

control have not been performed under RCRA, it is reasonable to presume on the basis of known 

concentrations of hazardous constituents of CCRs that risks to future inadvertent intruders could 

be unacceptable if institutional control and societal memory of past disposals at a site were lost. 

The probability that institutional control and societal memory would be lost and future 

inadvertent intruders put at risk should be substantially less at a RCRA Subtitle C disposal 

facility, which are relatively few in number, than at a more common RCRA Subtitle D facility. If 

so, this is an argument in favor of regulating disposal occurs under RCRA Subtitle C.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06196-23

Organization1:Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, various factors indicate that regulation of CCRs under RCRA subtitle D would not 

be sufficiently protective in Puerto Rico and other jurisdictions similarly situated. Enforcement 

of subtitle D regulations has been very lax in Puerto Rico. Most landfills have a history of 

noncompliance including lack of liners or groundwater monitoring, piggy backing wastes and 

many other regulatory violations. In one case, when selenium and other constituents of concern 

were detected in groundwater monitoring wells, the Puerto Rico government authorized 

relocation of the wells rather than require any type of remediation [Footnote 7: See EPA, Region 

II file on Salinas Municipal Landfill, operated by Browning Ferris Industries and Allied Waste 

Corp.] New Puerto Rico permitting regulations curtail public participation in siting processes and 

other activities requiring permits [Footnote 8: See Puerto Rico Law 161 of December 1, 2009.]. 

At least one study has shown that the percentage of environmental impact statements required by 

the Commonwealth government for new projects has steadily declined over the years [Footnote 

9: See C. M. Concepcion, Justicia Ambiental en Puerto Rico, 35 REV. J. UNIV. INTER. P.R. 75 

(2000).].
740

Jurisdictions with weak regulatory frameworks and/or a history of lax environmental or subtitle 

D enforcement, such as Puerto Rico, Alabama and others, will not achieve safe handling of 

CCRs under subtitle D regulation. The race to the bottom phenomenon posits that jurisdictions 

that seek to attract “low cost” energy generators or industries will forego environmental 

protection and regulation [Footnote 10: PLATER, ET ALS, ENVIRONMENTAL LAW AND 

POLICY, 283,296-298,460-461 (3RD ED, 2004),ASPEN PUBLISHERS]. Often, these 

jurisdictions lack the resources needed to monitor operations that entail potentially significant 

environmental impacts. This happens both in the United States and abroad. A case in point is the 

Dominican Republic, where CCRs generated at the AES plant in Guayama, Puerto Rico, were 

disposed of with no protective measures [Footnote 11: Settlement Agreement. Appendix C.] The 

level of state oversight seems to be related to economic development.

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06223-5

Organization1:Ohio Utility Group

Commenter1: Michael E. Born

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The purpose of Subtitle D is to provide a cooperative inter-governmental framework through 

which U.S. EPA’s role “is to establish the overall regulatory direction, by providing minimum 

nationwide standards.”[Footnote 8: 75 Fed. Reg. 35136.] The only way EPA can fulfill its role 

and carry out the purpose of Subtitle D is through consistency. The “threats” posed by CCRs are 

no more or less widespread or environmentally dangerous than dozens of other low toxicity and 

high volume industrial waste streams currently regulated by states without federal oversight. 

Ohio has five separate regulatory schemes for large volume, low toxicity industrial waste streams 

(lime processing, steel making, paper making, gypsum manufacture, and foundry processes). 

None of these materials are subject to a sweeping program such as that proposed by U.S. EPA. 

Yet, they have many of the same constituents and properties as CCRs. Does U.S. EPA intend to 

propose hazardous waste listing for all large volume industrial wastes under the same theory?

Much of U.S. EPA’s preamble is dedicated to explaining how, without listing CCRs as a 

hazardous waste, U.S. EPA will have no direct oversight or control of state programs. However, 

listing CCRs as a hazardous waste would still leave dozens of other large volume industrial 

wastes in that same circumstance. The RCRA standards for classifying a waste do not support a 

listing simply because U.S. EPA does not consider its enforcement authority sufficient. Congress 
741

prescribed the extent of U.S. EPA’s authority and the criteria for listing hazardous wastes. To list 

a waste as hazardous, U.S. EPA must show that the material will create a significant threat to 

human health and the environment, consistent with its historical and lawful application of the 

standards. CCRs do not meet those standards, and are safe when regulated as a solid waste. U.S. 

EPA must respect the policy determinations Congress has made and abide within the enacted 

legislative framework

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06275-25

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

As EPA points out in the preamble to the Proposed CCR Rule, EPA lacks direct enforcement 

authority under the Subtitle D option. Accordingly, EPA’s Subtitle D option proposes an 

awkward system of CCR landfill location, design and operating requirements that would be 

enforced through citizen suits based on information posted to internet web pages. The cost of 

developing and maintaining this web-based information tracking system will be significant and 

will almost certainly be passed on to CCR generators. 

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

referred to Unit V of the preamble for a discussion of the Agency’s decision to modify the 

qualifications of the individual that must certify an owner or operators technical 

demonstration. Under this rule, EPA is requiring a qualified professional engineer to “certify” 

rather than the proposed rule’s, independent registered professional engineer or hydrologist.

The rationale behind this decision is addressed in the preamble. EPA’s assessment as to the cost 

of development of a publicly assessable internet site is addressed in the cost benefit analysis 

(see Unit XII of the preamble discussion as well as the cost benefit document supporting this 

rule.) 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-4

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan
742

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Should EPA believe it does not have sufficient statutory authority to fully implement regulation 

of CCR via RCRA Subtitle D, we believe EPA should work with Congress to obtain necessary 

authority. This is preferable to attempting to regulate as a hazardous waste a material whose 

metals concentrations do not meet the toxicity characteristics of a hazardous waste under RCRA 

Subtitle C.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-44

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

If it is determined a more active federal role is required, we strongly recommend that Congress 

amend RCRA Subtitle D to allow federal oversight of the management of CCR as a solid waste.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-87

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

Federal oversight appears to be the driving force behind EPA's wish to select the Subtitle C 

option. Rather than imposing trillions of dollars of cost to achieve that, it would be much simpler 

and cost effective to amend the statute if that is EPA's desired result. The states and EPA have 

worked very well together in the Subtitle C program over the last three decades. There is a 

proven record to teamwork in many environmental programs, such as in the air and water 

programs. Opposition to amending the statute to allow EPA oversight authority for Subtitle D 
743

would be miniscule, or non-existent, compared to the opposition to the current Subtitle C option.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-37

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2 7.1.1.3 7.1.2.5

Comment Excerpt Text:

Table 29 shows the results of damage reports compiled by Environmental Integrity Project, 

Earthjustice, and Sierra Club [Footnote 168: Id. at 174; Out of Control.] Forty sites fit the current 

definition of open dumping—these landfills and impoundments have caused on-site groundwater 

to exceed Appendix I MCLs. Fifty-four sites have caused groundwater to exceed current EPA 

MCLs—these sites would therefore be subject to the remediation requirements of the proposed 

changes to the subtitle D open dumping criteria. It is important to remember that groundwater 

monitoring requirements are often absent or inadequate. This list is limited to those sites for 

which data are available, but we expect that many more sites have been contaminating 

groundwater in violation of the RCRA regulations. Although this list is incomplete, it vividly 

demonstrates that faith in state enforcement of subtitle D regulations is misplaced. The current 

criteria, contrary to their statutory purpose, have failed to ensure that there is “no reasonable 

probability of adverse effects on health or the environment.” [Footnote 169: 42 U.S.C. § 

6944(a).] The proposed changes to the subtitle D criteria will not do anything to improve 

compliance, and if anything will make the situation worse (see Section VI.C infra).

[see original comment for Table 29. On-site groundwater data exceeding Federal Primary 

Maximum Contaminant Levels (MCLs) or RCRA open dumping MCLs. [Footnote 170: 

40.C.F.R.§ 257, Appendix I.] (Table adapted from “In Harm’s Way” and “Out of Control” 

damage reports. [Footnote 171. In Harm's Way, at 124-31; Out of Control, at 19.]) 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-40

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
744

Other Sections: 4.4.2.2 7.1.2.5 7.1.1.3

Comment Excerpt Text:

In sum, the regulation of coal ash disposal practices under subtitle D is intended to prevent the 

risk of adverse health and environmental impacts. The mechanisms built into the law include 

state-enforced prohibitions of unpermitted surface water discharges and groundwater 

contamination. Yet the risk is not diminished if states consistently fail to enforce the basic 

requirements of Subtitle D. The lists above show that many landfills and surface impoundments 

are discharging selenium and other pollutants in violation of NPDES permits and that seeps from 

surface impoundments and landfills discharge without abatement. Many more sites are leaching 

arsenic, fluoride, lead, and other contaminants into aquifers that are potentially or actively 

supplying drinking water. These prohibited “open dumps” illustrate that states are not enforcing 

current federal guidelines. The present guidelines are few and straightforward. It is unreasonable 

to believe that states will do a much better job with the much more complex guidelines proposed 

under EPA’s subtitle D option. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-20

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

As indicated by the written comments on the Proposed Rule submitted to EPA by states such as 

Indiana and Kentucky, EPA is encouraged, to the extent it deems necessary, to request from 

Congress the statutory authority necessary to propose non-hazardous regulations under Subtitle 

D that are implemented by the states and provide federal enforceability. If such a mechanism is 

not utilized by EPA for states to be able to implement these rules, the electric utility industry and 

CCR beneficial users will be faced with having to comply with duplicative and potentially 

inconsistent state and federal regulations, an undue regulatory burden with no corresponding 

environmental benefit.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-22

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
745

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

Duke Energy concurs with USWAG’s legal analysis that EPA already has the authority to 

promulgate rules under RCRA §§ 4005(c) and 4010(c) that may be administered through state 

permitting programs and be subject to direct federal enforcement in states that fail to adopt and 

adequately administer the federal rules. Specifically, EPA can utilize a combination of the 

RCRA statutory authorities it employed in promulgating federally enforceable Subtitle D rules 

for municipal solid waste land disposal facilities (“MSWLFs”) and non-MSWLFs under 40 

C.F.R. §§ 257 and 258 to establish controls for CCR disposal units.

This approach provides EPA with the enforcement authority it desires under a Subtitle D CCR 

regulatory program, while also giving the states the opportunity to take a prominent role in the 

administration of any Subtitle D CCR program. Again, this would prevent the duplication of 

potentially conflicting federal and state requirements. If, for whatever reason, EPA does not 

agree that the use of RCRA §§ 4005(c) and 4010(c) are legally defensible, it can and should seek 

congressional authorization to develop such a rule for managing CCR under a state authorized 

program similar to that developed for MSWLFs under 40 C.F.R. § 258, rather than promulgate a 

CCR rule that does not provide for state implementation.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-34

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

The preamble states on p. 35160 that “EPA also does not have the authority to determine 

whether any state permitting program for CCR facility is adequate”. EPA Regional staff did not 

seem to have undue difficulty with becoming familiar with State rules when reviewing State 

MSW landfill regulations as part of seeking authorization under part 258 MSW landfill rules, nor 

in making decisions about their adequacy. EPA Regional staff, in our experience, are reasonably 

familiar with State rules, including many or all requirements for non-MSW waste disposal sites. 

It should also be pointed out that State agency plan review staff are already in a position to 

achieve the goal repeated often in the preamble, of effectively implementing regulations and 

tailoring them to individual site conditions. 
746

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-3

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 1.5 4.2.2 7.4.2

Comment Excerpt Text:

State Adoption of EPA Rules

EPA should use the same methodology for regulating CCRs as was used in implementing the 

Subtitle D landfill rules for municipal solid waste. EPA should adopt rules setting a minimum 

standard, provide for the adoption of these rules by the states, and maintain enforcement 

authority for these rules in states that EPA determines have not adequately implemented these 

rules.

All subsequent comments are based on the assumption that EPA will allow for state adoption of 

the proposed rule. If EPA elects not to allow for state adoption of the proposed rules, we request 

an additional public comment period to adequately address the proposed rules.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06516-2

Organization1:Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, 

Iowa Physicians for Social Responsibility

Commenter1: Carrie La Seur

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 7.1

Comment Excerpt Text:

It is the collective opinion of Iowa’s conservation community that Subtitle C provides the only 

effective option for protecting human health and the environment from the physical and the 

chemical dangers of coal ash. Subtitle D would allow EPA only to develop suggested guidelines 

for coal ash disposal, leaving citizens without federally enforceable rules and permitting our state 
747

to opt out of the guidelines. As your analysis has already indicated, the majority of states are 

likely to ignore any EPA-developed disposal guidelines and would continue to allow dangerous 

coal ash dumping under current, inadequate state programs.

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

for self-regulation and no meaningful change to the status quo should EPA choose Subtitle D 

regulation. In 2007, when our Department of Natural Resources responded to public concern 

with a proposal to improve regulation of coal ash, industry responded immediately with a

campaign to shut down regulatory reform. Several dozen coal ash producers sent nearly identical 

letters to DNR, pleading economic hardship if minimally protective regulations such as liners 

and groundwater monitoring were put in place. As a result, DNR shelved the proposed reforms, 

with the justification that EPA would soon put stronger regulation in place that would supersede 

any effort by DNR.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06533-14

Organization1:Empire District Electric Company

Commenter1: George G. Thullesen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Empire District urges EPA to take a ‘States First’ approach for primacy in regulating CCR with 

EPA providing oversight of state plans. EPA should provide for the evaluation of state programs. 

The proposed rule and alternatives do not provide for any interplay between the states and EPA; 

rather, merely the acceptance of data. Empire District recommends that EPA establish guidance 

for the state RCRA subtitle D or D prime programs and evaluate state programs for compliance 

based on that guidance. We are not against EPA being granted oversight authority to regulate 

under subtitle D or D prime if EPA provides the states with the appropriate methodology to 

maintain primacy. EPA should recognize and utilize the competent existing staff of the MDNR 

and Kansas Department of Health and Environment (KDHE). The MDNR and KDHE are best 

situated to make key environmental decisions for their states.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.
748

Comment Number: EPA-HQ-RCRA-2009-0640-06723-8

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

Because the EPA recognizes that CCRs do not display the characteristics referenced in their own 

hazardous waste definition, CCRs are being designated as special wastes so that EPA can 

regulate them under Subtitle C. This position contradicts EPA's regulatory findings published in 

1993 and 2000 that stated CCRs "do not warrant regulation under Subtitle C." By designating 

CCRs as special wastes, EPA is expanding its authority to designate any wastes as hazardous 

whenever it desires without regard for the appropriate characterization of the waste or for the 

ability of the states to effectively deal with waste issues within state borders. Although EPA has 

repeatedly indicated that sound science will drive their decision-making, there is no technical 

basis for EPA's change in position to regulate CCRs under Subtitle C. Although Section III.B of 

the proposed regulations references that under Subtitle D EPA does not have the authority to 

establish requirements governing the transportation, storage, and treatment of CCRs prior to 

disposal, EPA does not need this authority because CCRs are not hazardous. 

EPA asserts that a Subtitle C classification is necessary for it to retain and exercise appropriate 

enforcement authority and that it cannot require states to permit CCR disposal facilities under 

Subtitle D. If it would choose to do so, the EPA can regulate CCR disposal facilities under the 

same RCRA Sections (4010 and 4005) that it used to develop federally enforceable Subtitle D 

regulations for municipal landfills. Using this authority, the States can be afforded the 

opportunity to operate the Subtitle D program either by demonstrating that the state rules already 

are as stringent as the Federal Subtitle D rules or by adopting additional regulations that include 

minimum Subtitle D standards. If State programs do not adopt the minimum federal standards, 

the EPA could step in with direct enforcement powers.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06723-9

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5
749

Comment Excerpt Text:

Furthermore, as referenced in Sections X.B and XII of the proposed regulations, the EPA already 

has broad RCRA 7003 enforcement authority to address Potential Substantial Threats or 

Endangerments to Human Health and the Environment as well as imminent hazards for releases 

of solid waste, and therefore, does not need the additional authority afforded by Subtitle C.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06817-45

Organization1:Portland Cement Association

Commenter1: Robert Hirsch

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Unless EPA can prove irrefutably that the States will not implement and enforce EPA’s subtitle 

D requirements if adopted by this rulemaking, it would be unreasonable and arbitrary for EPA to 

conclude that subtitle D could not, and would not, protect the public if adopted and, therefore, 

that EPA must adopt its proposed Option 1.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06826-2

Organization1:The University of Wisconsin Madison

Commenter1: Craig H. Benson and Tuncer B. Edil

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

One argument that has been proffered for choosing a Subtitle C approach relative to a Subtitle D 

approach is that Subtitle C regulations ensure federal control over CCR management. We can 

understand the desire for federal control because it can ensure a minimum standard is employed 

throughout the US. However, we cannot understand why that motivation is tied to a Subtitle C 
750

designation. Authorized states are already required to meet minimum technology requirements 

for Subtitle D landfills. These same minimum technology requirements can be applied to 

disposal of CCRs in Subtitle D type landfills. Moreover, if US EPA is convinced that federal 

control is necessary, US EPA should request Congress to promulgate a new section of RCRA 

that provides federal control and requires technology consistent with the risk imposed by CCRs. 

Requiring a Subtitle C designation for the primary purpose of maintaining federal control is not 

logical scientifically and would set poor precedent

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06852-11

Organization1:Green Delaware

Commenter1: Alan Muller

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.6

Comment Excerpt Text:

Permit Issuance 

Federal required and enforceable permits exist under Subtitle C but not D.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06853-2

Organization1:Environmental Defense Fund (EDF)

Commenter1: Elizabeth B. Stein

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The available information regarding inadequate management of coal ash at the state level 

underscores the importance of more rigorous protections. The EPA’s recent risk assessment 

points to the inadequacy of some types of active management systems for coal ash that have been 

put in place, such as clay liners, and we know that many disposal sites under state regulation fail 

to manage the contaminants from coal ash at all. 75% of surface impoundments are greater than 
751

25 years old, and 10% greater than 50 years old, and many completely lack liners and ground 

water monitoring systems. [Footnote 6: Id. at 35,151] Though recent data have shown 

improvement in the management of coal ash by some states at new disposal facilities, the most 

recent (2009) data from the Association of State and Territorial Solid Waste Management 

Officials (ASTSWMO) reveals persistent gaps in the regulation of coal ash at the state level. As 

the EPA’s proposed rule notes, the ASTSWMO study reported that 36% of states that responded 

to a survey reported no liner requirements for new or existing CCR landfills, and 67% of 

responding states reported no liner requirements for CCR surface impoundments. [Footnote 7: 

Id. at 35,152.]

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-06853-4

Organization1:Environmental Defense Fund (EDF)

Commenter1: Elizabeth B. Stein

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2

Comment Excerpt Text:

C. Regulations Under Subtitle D Would Pose Unacceptable Risk to Human Health and the 

Environment 

Because the best available data show that specific steps must be taken to properly treat, store, 

transport and dispose of coal ash in order to avoid a substantial hazard to human health and the 

environment, we oppose the Subtitle D option. The weak federal oversight and enforcement 

capability under Subtitle D does not suit the national scope of the coal ash problem, especially in 

light of the inadequacy with which disposal is currently being managed in many jurisdictions. 

Furthermore, EPA predicts a 100% compliance rate under the Subtitle C approach, but only a 

48% compliance rate under Subtitle D.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. As a final matter , 

the commenter is referred to the revised cost benefit analysis for a revised analysis of costs and 

benefits. 

Comment Number: EPA-HQ-RCRA-2009-0640-06860-18

Organization1:South Carolina Chamber of Commerce, Environmental Technical Committee

Commenter1: David M. Comen
752

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The ETC supports a legislative change to allow EPA to step in where states do not have a solid 

waste program, or have an insufficient program, similar to the authority already exercised by 

EPA with the hazardous waste (RCRA), air emissions (CWA), and discharges to water (CWA) 

programs.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06956-5

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. EPA Has The Authority To Develop Subtitle D Rules Administered By The States With 

Direct EPA Enforcement Authority

One of EPA’s stated concerns with the Subtitle D option is that it would not allow EPA to 

require the states to implement the Subtitle D CCR controls through state permits, approve the

adequacy of the state programs, or enforce the regulations against non-compliant facilities. This 

concern is misplaced. EPA is under-utilizing the full scope of its authority under Subtitle D by 

looking solely to RCRA section 4004 for purposes of developing Subtitle D controls for CCRs. 

EPA can utilize the same combination of RCRA statutory authorities – i.e., RCRA sections 

4010(c) and 4005(c) – for establishing controls for CCR disposal units that it employed in 

promulgating federally enforceable Subtitle D rules for municipal solid waste landfills 

(“MSWLFs”) and for non-MSWLFs that receive household hazardous waste and small quantity 

generator waste under 40 C.F.R. Parts 257 and 258.

The combination of these two Subtitle D provisions enables EPA to promulgate non-hazardous 

waste rules for CCRs that can be directly administered through state permitting programs and 

backed-up by direct EPA enforcement powers in those states that fail to adequately implement 

the federal rules. Such an approach offers a win-win option for EPA – it provides the Agency 

with the enforcement authority it desires under a Subtitle D CCR regulatory program, while also 

enabling the states to have a prominent role in the administration of any Subtitle D CCR rules, 

thereby preventing the duplication of federal and state controls that the Bevill Amendment 

directs EPA to avoid. 

The plain language of section 4010(c) directs EPA to promulgate upgraded Subtitle D standards 

for facilities that may receive CESQG hazardous wastes and for facilities potentially receiving 

such wastes. This language applies on its face to CCR disposal units, as they are Subtitle D solid 

waste management units that, under RCRA's statutory scheme, may receive CESQG hazardous 
753

waste and clearly have the potential to receive such wastes. Nothing in the plain language of the 

statute limits these provisions to only those facilities that "actually receive" household hazardous 

wastes or CESQG wastes. If Congress had intended to limit the statute in this manner, it would 

have written the law saying just that; it did not.

Section 4005(c), which was enacted as a companion provision to section 4010(c), directs the 

states to adopt the new regulations for Subtitle D facilities that may receive household or 

CESQG wastes and, of critical importance here, specifically authorizes EPA to enforce such 

regulations in those states that fail to adopt the federal rules. Specifically, that section provides, 

in pertinent part, that, after EPA has promulgated the revised criteria under section 4010(c) for 

the specified Subtitle D facilities, “each State shall adopt and implement a permit program or 

other system o[f] prior approval and conditions to assure that each solid waste management 

facility within such State which may receive” household or CESQG hazardous waste “will 

comply with” the revised criteria promulgated by EPA under RCRA § 4010(c) for such facilities.

Tri-State G&T appreciates that the development of a proposed Subtitle D regime allowing for 

administration of the regulations by qualified state programs, whether under RCRA section 

4010(c) or through some other mechanism, will necessitate issuance of a supplemental proposal. 

Nonetheless, this additional procedural step is necessary to ensure promulgation of an 

environmentally sound regulatory program for CCRs that allows for appropriate state 

involvement. Such an approach is consistent with the rulemaking record and the dictates of the 

Bevill Amendment

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-07395-16

Organization1:Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. EPA Has the Authority Under RCRA 4010(c) to Require State Oversight Under RCRA 

Subtitle D

The TCCPC does not believe that federal involvement is necessary given the comprehensive 

nature of the Texas program. Nevertheless, given EPA's continued desire to propose national 

regulations, it disagrees with EPA's assessment of its authority under RCRA Subtitle D. 

EPA has stated that it:

[does] not have administrative enforcement authority to enforce any RCRA subtitle D criteria for 

CCR facilities, authority to require states to issue permits for them or oversee those permits, nor 
754

authority for EPA to determine whether any state sprogram for CCR facilities is adequate 

[Footnote 42: Coal Ash Rule Proposal, 75 Fed. Reg. at 35,136.].

The TCCPC respectfully submit that this overly narrow view of the law by EPA is unwarranted 

and the consequences are significant. EPA has the authority under RCRA to develop a process to 

evaluate state CCR programs to ensure compliance and require a prior approval mechanism 

enforced by the states.

EPA's authority to rely upon either a state-led permitting progranl or other system of prior 

approval comes from the same provisions under which EPA has already developed federally 

enforceable criteria for Municipal Solid Waste Landfills (MSWLFs) and non-municipal solid 

waste landfills that may receive conditionally exempt small quantity generator (CESQG) 

hazardous waste. RCRA Section 4010(c) requires only that a facility "may" receive such waste, 

not that such waste is, in fact, received.

Section 4010(c) of RCRA provides:

Not later than March 31, 1988, the Administrator shall promulgate revisions of the criteria 

promulgated under paragraph (1) of section [4004] of this title and under section [1008] of this 

title for facilities that may receive hazardous household wastes or hazardous wastes from small 

quantity generators under section [3001] of this title. The criteria shall be those necessary to 

protect human health and the environment and may take into accolmt the practicable capability 

of such facilities. At a minimum such revisions for facilities potentiallv receiving such wastes 

should require ground water monitoring as necessary to detect contamination, establish criteria 

for the acceptable location of new or existing facilities, and provide for corrective action as 

appropriate. (emphasis added).

Once Section 4010(c) criteria are promulgated, states would be required to adopt a pellTIit 

program or other method of prior approvaL As stated in RCRA Section 4005(c)(1)(B):

[n]ot later than eighteen months after the promulgation of revised criteria under subsection 

[4004(a)] of this title (as required by section [4010(c)] of this title), each State shall adopt and 

implement a permit program or other system [of] prior approval and conditions, to assure that 

each solid waste management facility within such State which may receive hazardous household 

waste or hazardous waste due to the provision of section [3001(d)] of this title for small quantity 

generators (otherwise not subject to the requirement for a pemlit under section [3005] of this 

title) will comply with the criteria revised under section [4004(a)] of this title.

The combination of RCRA Section 4005(c) and 4010(c) enables EPA to promulgate 

nonhazardous waste rules that can be administered through state programs and backed up by 

EPA enforcement for states failing to adequately implement federal rules. The result allows EPA 

to retain direct enforcement authority, while allowing states to implement state specific programs 

that make sense. This prevents duplication of federal and state rules, but more importantly and as 

EPA has long recognized, allows for states to address the individuality of state environmental 

conditions and requirements. In the end, this approach leads to more effective efficient 

environmental and human health protection
755

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-07489-5

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.5

Comment Excerpt Text:

EPA mischaracterizes the differences between the Subtitle C and D programs, contending 

without support that the Subtitle D program lacks enforceability. 

EPA is pursuing a Subtitle C regulation based on a misperception that EPA needs enhanced 

enforcement options because the states lack such authority. At the same time, EPA and other 

federal agencies, continue to delegate programs and enforcement to the states; and as discussed 

previously, with some additional support from EPA, states can develop and implement wellfunctioning enforcement programs.

Even under a state run Subtitle D program, EPA has enforcement authorities that allow it to 

enforce Subtitle D requirements. If a site does not comply with Subtitle D Standards, the site 

could be classified as an “open dump” and subject to enforcement action, even by EPA. Even for 

authorized state programs, EPA always retains the ability to enforce to prevent an “imminent and 

substantial endangerment” of public health or the environment. [Footnote 6: 75 FR 35211]

States can perform effectively; the present state of CCB regulation is not an example of a failed 

Subtitle D program, rather it is a Subtitle D program never launched. 

Subtitle D is a highly effective regulatory mechanism, as evidenced by states' implementation of 

the Subtitle D program for managing solid waste. In the case of CCBs, states have been required 

to develop their own programs for managing CCBs. In some states, these programs are limited 

by state laws that limit the state’s development and implementation of a program where EPA has 

not developed a regulatory approach. The real failure for enforcement lies with EPA. Had EPA 

promulgated regulations under Subtitle D and had the states not implemented the regulations, 

then perhaps a case of state regulatory failure could be made. Here, however, in the absence of 

EPA involvement, the states have developed regulations for the management of CCBs from all 

combustion sources

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.
756

Comment Number: EPA-HQ-RCRA-2009-0640-07806-2

Organization1:

Commenter1: Mass Comment Campaign sponsoring by Earthjustice (165 signatures) Part 1 of 

2

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 4.1.2 9.2.3

Comment Excerpt Text:

Subtitle C provides the only effective option for protecting human health and the environment 

from the physical and the chemical dangers of coal ash. Subtitle D would allow EPA only to 

develop suggested guidelines for coal ash disposal, leaving citizens without federally enforceable 

rules and permitting individual states to opt out of the guidelines. As your analysis has already 

indicated, the majority of states are likely to ignore any EPA-developed disposal guidelines and 

would continue to allow dangerous coal ash dumping under current, inadequate state programs.

The untenable result under Subtitle D would be unequal and inadequate protection from a 

pervasive threat that plagues almost every state in this nation. The perilous reality, according to 

your agency's own calculations, is that those states that currently fail to protect their citizens 

from the dangers of coal ash are the same states that, given the choice granted by Subtitle D, 

would ignore newly promulgated EPA guidelines. These are the exact same states that generate 

the overwhelming majority of the coal ash in the U.S. (approximately 80% of annual generation). 

Furthermore, a Subtitle D scheme leaves vulnerable populations - low-income communities, 

communities of color and children - living near these disposal sites out in the cold. Selection of 

Subtitle D would create monumental disparity: those states that will not implement Subtitle D are 

also more likely to have higher percentages of vulnerable populations, putting them at greater 

risk. In other words, a weak EPA rule would apply new safeguards in states where coal ash 

presents a relatively small, or even non-existent, environmental justice problem, while failing to 

add protections in states where environmental justice communities are heavily impacted by coal 

ash disposal. 

By comparison, Subtitle C offers a comprehensive, equitable and meaningful basis for coal ash 

regulation. Where Subtitle D proffers only guidelines, Subtitle C establishes federally 

enforceable safeguards codified in mandatory permits. Where Subtitle D only addresses disposal, 

Subtitle C covers the entire lifecycle of ash, from generation and storage to transportation, 

treatment and final disposal. 

The breadth and federal enforceability of Subtitle C regulations are necessary because coal ash 

poses a very real danger. The catastrophic collapse of the dam at the Tennessee Valley 

Authority's Kingston plant sounded a warning for the grave threats posed by the nation's aging 

fleet of coal ash impoundments - a great number of which are over three-decades old, not 

designed, built or constructed by professional engineers, and located in states where neither 

inspections nor evacuation plans have ever been required. 
757

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-28

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

With respect to EPA’s argument that “...RCRA subtitle D requirements would regulate only the 

disposal of solid waste, and EPA does not have the authority to establish requirements governing 

the transportation, storage, or treatment of such wastes prior to disposal” (Preamble, page 35160 

of the Federal Register), the Department notes that the principal problems that EPA has 

described in the Damage Cases supporting this rule making were principally involved with 

disposal of CCRs, not transportation, storage, or treatment. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-23

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 4.2.2 4.5

Comment Excerpt Text:

Specifically, Ohio EPA urges U.S. EPA to reexamine the legal interpretation on existing 

authority or seek appropriate authority to adopt rules for the U.S. EPA approval of state CCR 

permit programs modeled after the highly successful Title 40 Part 239: Requirements for State 

Permit Program Determination of Adequacy. The Title 40 Part 239 approach would ensure that 

states with U.S. EPA approved permit programs have direct state enforcement authority in 

addition to the citizen suit enforcement authority. It also clarifies that an owner or operator of a 

CCR disposal facility is not obligated to follow the RCRA subtitle D federal rules if that owner 

or operator has obtained and complies with an approved state issued CCR disposal facility 

permit. This avoidance of duplicative regulation is a significant “carrot” for both industry and 

state government to seek U.S. EPA state permit program approval. For over a decade (1999), this 
758

approach has successfully ensured state permitting of MSW landfills consistent with minimum 

national standards. This Title 40 Part 239 approach is widely accepted by the states with the vast 

majority having obtained U.S. EPA approval of their state permit programs. It should be noted 

that this has been accomplished by states without the aid of any federal funding. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-5

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 4.2.2 4.5

Comment Excerpt Text:

Ohio EPA acknowledges U.S. EPA and citizens' concerns regarding the reliance of RCRA 

subtitle D on citizen suit enforcement authority. Specifically, Ohio EPA urges U.S. EPA to 

reexamine the legal interpretation on existing enforcement authority to adopt rules for the U.S. 

EPA approval of state CCR permit programs modeled after the highly successful Title 40 Part 

239: Requirements for State Permit Program Determination of Adequacy. The Title 40 Part 239 

approach would ensure that states with U.S. EPA approved permit programs have direct state 

enforcement authority in addition to citizen suit enforcement authority. It also clarifies that an 

owner or operator of a CCR disposal facility is not obligated to follow the RCRA subtitle D 

federal rules if that owner or operator has obtained and complies with an approved state issued 

CCR disposal facility permit. This avoidance of duplicative regulation is a significant "carrot" 

for both industry and state government to seek U.S. EPA state permit program approval. For over 

a decade (1999), this approach has successfully ensured state permitting and state enforcement 

authority for MSW landfills consistent with minimum national standards. This Title 40 Part 239 

approach is widely accepted by the states with the vast majority having obtained U.S. EPA 

approval of their state permit programs. I note that this has been accomplished by states without 

the aid of any federal funding.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-11

Organization1:Massachusetts Department of Environmental Protection
759

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.4.8 4.2.2 4.4.9.1

Comment Excerpt Text:

MassDEP recommends that the final EPA regulations include the following critical provisions: 

• National minimum design and performance standards for disposal in landfills that include 

requirements for a composite liner, leachate collection, groundwater monitoring and final closure 

Response: The commenter is referred to Unit VI of the preamble for a discussion of the 

technical standards for CCR landfills and surface impoundments. 

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for 

certain encapsulated uses of CCR in cement products or similar encapsulated uses in products 

• State or federal compliance assurance for beneficial uses to ensure that such uses will be 

protective of public health and the environment 

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

• Financial assurance for landfill closure and post-closure monitoring and maintenance 

Response: As discussed in the proposed rule, EPA has no authority to require financial 

assurance under the Subtitle D approach being promulgated in this rule. The Agency will 

consider financial assurance for the electric utility industry as part of its CERLA 108(b) 

regulatory development process.

• Allowance for states to be more stringent than the final EPA rules 

• Clear enforcement authority and permitting authority for states 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-12

Organization1:Massachusetts Department of Environmental Protection
760

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.2.2

Comment Excerpt Text:

EPA has asked whether the final regulations should provide for alternative liner designs. 

MassDEP recommends that alternative designs be based on performance equivalent to the 

specified standard design. The Massachusetts regulations include a provision allowing for review 

and approval of alternative designs as long as the design will achieve equivalent or superior 

performance to the standard design for the life of facility operations, closure and post -closure 

period. The equivalent design must use methodologies, materials and technologies that are 

clearly demonstrated to have been successful in similar applications and can use acceptable 

QA/QC methods to monitor construction and performance. 

MassDEP believes alternative designs make the most sense where there is a regulatory agency 

reviewing and approving the alternative. In a self-implementation regulatory scenario, allowing 

for alternative designs without agency oversight creates potential compliance issues. If 

alternative designs are allowed, compliance could be certified by the state or federal government 

or an independent third-party verifier subject to audit and enforcement. 

MassDEP strongly recommends that there needs to be state or federal oversight of design and 

operations of facilities that dispose of CCR. While CCR may be less problematic to manage in a 

landfill environment than MSW and presents fewer management issues, proper design and 

construction of landfills and monitoring systems is critical and should have a federal or state 

oversight and approval process. However, absent state or federal oversight, reliance on third 

party review and certification by independent registered professional hydrogeologists or 

engineers, as appropriate, would be beneficial provided the facility design and operation are 

subject to state or federal audit and enforcement. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. With regard to 

alternative liner designs, the commenter is referred to the discussion in Unit VI of the preamble 

which allows an alternative lower liner as part of a composite liner system for new units. 

Comment Number: EPA-HQ-RCRA-2009-0640-08787-31

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:
761

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

The EPA proposal identifies the adequacy of State programs as a central issue in selection of an 

option. A common theme throughout the proposal is that the lack of "federal oversight of State 

programs" is a "disadvantage to any approach under RCRA Subtitle D." The EPA proposal notes 

that Subtitle D is implemented by the States and "EPA may act only if the handling, storage, 

treatment, transportation, or disposal of such wastes may present an imminent and substantial 

endangerment to health or the environment (RCRA 7003)." The implication is that State Subtitle 

D programs are inadequate, but EPA presents no evidence to support this presumption. 

Since enactment of the 1979 federal Subtitle D regulations, 40 CFR part 257 Criteria for 

Classification of Solid Waste Disposal Facilities and Practices has established the minimum 

national performance standards necessary to ensure that "no reasonable probability of adverse 

effects on health or the environment" would result from solid waste disposal facilities or 

practices. States either already had existing State requirements or voluntarily adopted rules that 

meet or exceed the Subtitle D national performance standards. When State regulators were 

recently asked whether existing State standards/regulations for non-MSW facilities are mostly 

compatible with or more stringent than the existing Part 257 minimum standards, 47 out of 47 

States responded "yes". 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08840-12

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. EPA's Concerned Lack of Enforcement Authority Under RCRA D

One of the concerns expressed by EPA in this proposed rulemaking is its perceived lack of 

enforcement authority over non-hazardous non-municipal waste disposal. EPA has referenced 

the intent to "issue regulations governing the disposal of CCRs under sections 1008(a), 

2002,4004 and 4005(a) of RCRA (i.e., "subtitle D" of RCRA). Under this approach, the CCR's 

would remain classified as a non-hazardous RCRA solid waste, and EPA would develop national 

minimum criteria governing facilities for their disposal." 75 Fed. Reg. at 35192.

EPGA suggests that EPA can and should also apply the requirements of RCRA 4005(c) and 

4010(c) in this rulemaking, which EPA applies to the regulation of municipal solid wastes. 
762

RCRA section 4010(c) was added to RCRA to provide additional authority over facilities that 

may accept for disposal household hazardous wastes or hazardous wastes from small quantity 

generators (i.e., conditionally exempt small quantity generators or CESQGs). Section 4005(c) 

was added as a companion provision to section 4010(c), to direct states to adopt the new 

regulations for Subtitle D facilities covered under 4010(c), and authorizes EPA to enforce these 

regulations in states that fail to adopt them. The apparent difference in whether these sections 

should be applied to CCRs, which are non-municipal solid wastes, is the potential to accept for 

disposal of household hazardous wastes or hazardous wastes due to provisions of section 3001(d) 

for small quantity generators of hazardous wastes. EPGA believes that the intent for section 

4010(c) and 4005(c) to be added to RCRA was so that any facility with the potential of receiving 

these small quantities of hazardous wastes would be adequately protective of human health and 

the environment. The addition of 4010(c) and 4005(c) was not restricted to only those facilities 

that actually receive small quantities of hazardous wastes, but was intended to cover those that 

may. EPGA contends that there is the potential for CCR disposal facilities to receive small 

quantities of hazardous wastes, so section 4010(c) and 4005(c) can be applied to CCRs, which, 

based on the rulemaking record to date, are non-hazardous solid wastes.

In fact, it appears that EPA supports this conclusion in the way it has interpreted its authority to 

develop the proposed requirements for the second option. In developing the proposed RCRA 

subtitle D option, EPA considered a number of existing requirements, but "The primary source 

was the existing requirements under 40 CFR part 258, applicable to municipal solid waste 

landfills." 75 Fed. Reg. at 35193. Further, "EPA considered that many of the technical 

requirements that EPA developed to specifically address the risks from the disposal of CCRs as 

part of the Subtitle C alternative, would be equally justified under a RCRA subtitle D regime." 

[d. EPGA contends that use of this logic suggests that EPA was seeking that additional comfort 

afforded by the requirements of the municipal waste regulations and certain portions of the 

hazardous waste regulations to cover the potential for small quantities of hazardous waste being 

disposed in these CCR disposal facilities.

Application of 4010(c) and 4005(c) allows the program to be directly administered through state 

permitting authority and provides EPA with the enforcement authority that it is seeking in those 

states that fail to adequately implement the federal rules. In addition, these requirements provide 

the same level of protection as the first option, but allow CCRs to continue to be classified as 

nonhazardous wastes under RCRA Subtitle D

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08852-2

Organization1:Western Organization of Resource Councils (WORC)

Commenter1: Patrick Sweeney

Commenter Type: Advocacy Group
763

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.2

Comment Excerpt Text:

States where coal produces significant amounts of electricity or economic activity have 

demonstrated the inability to adequately regulate the coal industry and its toxic byproducts. Your 

own agency believes if Subtitle D regulation is adopted, states, will likely continue to ignore the 

dangers of coal combustion waste, resulting in unequal and inadequate enforcement.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced and how EPA expects the states to implement the rule. The reader 

is also referred to Unit IV of the preamble for a discussion relating to the decision to regulate 

CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08861-4

Organization1:Inter-Tribal Council of Michigan Inc.

Commenter1: Robin Clark

Commenter Type: Tribal Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.4 3.7.6

Comment Excerpt Text:

Risks associated with CCRs necessitate state and federal permit programs that include 

monitoring, recordkeeping, enforcement, and financial assurance, as required in Subtitle C. 

Subtitle C requires facilities to clean up releases of wastes or constituents at the facility and 

beyond its borders, and demonstrate financial assurance for any obligations or liabilities. Subtitle 

D's approach of allowing industry to conduct self-governed monitoring and corrective action, 

and leaving enforcement up to citizens and interest groups, is both inadequate and ill-advised.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-08864-1

Organization1:JEA

Commenter1: Athena Mann

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3
764

Comment Excerpt Text:

In addition to the regulatory options presented in the co-proposals, JEA urges EPA to more 

carefully consider a path forward where EPA seeks and obtains the statutory authority needed to 

approve State programs that meet EPA parameters, allowing States like Florida to manage CCRs 

in a way that best serves its citizens, while retaining enforcement authority over States that are 

unable to regulate them in an effective manner.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-49

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

PSGC recommends that EPA request specific legislative authorization to develop federally 

enforceable Subtitle D regulations. If EPA declines this proposal, PSGC supports the 

development of Subtitle D non-hazardous waste regulations for CCRs under the proposed 

Subtitle D Prime option with the modifications discussed below.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09273-16

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1: Wayne Gieselman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Legislative Solution Required? If federal enforceability is the primary barrier between 

scientifically appropriate Subtitle D regulation of CCR versus a RCRA C approach that provides 

no greater level of environmental protection, the IDNR suggests that the Agency focus its efforts 

on a legislative solution. Specifically, Congress could direct the Agency to establish waste 

management criteria under Subtitle D (or a new subtitle) applicable to solid waste management 
765

facilities that receive CCR and require that states adopt a compliant permit program. This 

approach could provide the Agency with the desired enforcement authority to assure states 

implement those management standards. Keeping in mind that any federal regulation should 

establish minimum requirements to be applied to facilities in states where no approvable state 

regulatory program exists, and that states should be allowed to demonstrate that their regulatory 

programs are adequately protective. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09274-12

Organization1:RRI Energy Inc.

Commenter1: S. Dixon

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A. EPA's Concerned Lack of Enforcement Authority Under RCRA Subtitle D

One of the concerns expressed by EPA with the Subtitle D option is that it would not allow EPA 

to require the states to implement the Subtitle D CCR controls through state permits, approve the 

adequacy of the state programs, or enforce the regulations against non-complaint facilities. EPA 

has referenced the intent to "issue regulations governing the disposal of CCRs under sections 

1008(a), 2002, 4004 and 4005(a) of RCRA (i.e., "subtitle D" of RCRA). Under this approach, the 

CCRs would remain classified as a non-hazardous RCRA solid waste, and EPA would develop 

national minimum criteria governing facilities for their disposal." 75 Fed. Reg. at 35192.

RRI suggests that EPA can and should also apply the requirements of RCRA 4005(c) and 

4010(c) in this rulemaking, which EPA applies to the regulation of municipal solid wastes. RRI 

believes that the intent for section 4010(c) and 4005(c) was so that any facility with the potential 

of receiving these small quantities of hazardous wastes would be adequately protective of human 

health and the environment. The addition of 4010(c) and 4005(c) was not restricted to only those 

facilities that actually receive small quantities of hazardous wastes, but was intended to cover 

those that may. RRI contends that there is the potential for CCR disposal facilities to receive 

small quantities of hazardous wastes, so section 4010(c) and 4005(c) can be applied to CCRs, 

which, based on the rulemaking record to date, are non-hazardous solid wastes.

Application of 4010(c) and 4005(c) allows the program to be directly administered through state 

permitting authority and provides EPA with the enforcement authority that they are seeking in 

those states that fail to adequately implement the federal rules. In addition, these requirements 
766

provide the same level of protection as the first option, but allow CCRs to continue to be 

classified as non-hazardous wastes under RCRA Subtitle D

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-18

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

Although EPA asserts that the enforcement provisions under the Subtitle C option will provide 

EPA with more enforcement authority than under the Subtitle D option, Virginia DEQ cautions 

EPA to examine all options and consider potential changes that may enhance the proposal. EPA 

should consider seeking congressional assistance to provide for greater enforcement authorities 

under the provisions of the RCRA Subtitle D rather than try to regulate CCRs under the Subtitle 

C option.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-27

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

EPA has also stated that the enforcement provisions under the Subtitle C option provide EPA 

with more enforcement authority than under the Subtitle D option. Virginia DEQ urges EPA to 

do their due diligence and examine all options and consider potential changes that may enhance 

the proposal. EPA should consider seeking from Congress greater enforcement authority under 

the provisions of the Subtitle D program if that is a factor that is driving EPA to pursue 

regulating CCRs under the Subtitle C option. This would allow EPA the option to further 

regulate CCRs without being required to label CCRs as hazardous waste; thereby, eliminating 
767

concerns associated with beneficially using a hazardous waste.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA.

Comment Number: EPA-HQ-RCRA-2009-0640-09530-11

Organization1:PSEG Power LLC and Public Service Electric and Gas

Commenter1:Eric B. Svenson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

XII. EPA Should Develop Subtitle D Rules With Direct EPA Enforcement Authority 

EPA has expressed concern that the Subtitle D option does not allow EPA to require the states to 

implement the Subtitle D CCR controls through state permitting programs, approve the adequacy 

of the state programs, or enforce the regulati ons against noncompliant facilities [75 Fed. Reg. at 

35194]. EPA has made this determination based on its authority under RCRA section 4004 for 

purposes of developing Subtitle D controls for CCRs [75 Fed. Reg. at 35193-35194].

PSEG believes Sections 4010(c) and 4005(c) of RCRA could provide the basis for EPA to 

promulgate a Subtitle D option for CCR’s permitted by states, but enforced at a federal level. 

This approach would provide the Agency with enforcemen t authority under a Subtitle D 

program, while maintaining a state permitting program, thereby preventing the duplication of 

federal and state controls that Bevill Amend ment directs EPA to avoid. 

In this regard EPA could evaluate existing state controls to validate their ability to adequately 

permit CCR disposal units (as is the case with municipal solid waste landfills under 40 C.F.R. 

Part 258) and administer controls, where federal oversight can apply to ensure compliance with 

the applicable regulatory requirements. Such an approach would allow for the necessary state 

involvement in administrating Subtitle D and ensure appropriate regulatory controls available via 

federal oversight. 

While PSEG believes EPA has the authority to enforce Subtitle D regulations, if EPA believes 

that it does not have the appropriate authority, then EPA could consider a legislative solution and 

ask for enforcement authority under Subtitle D through a statutory adjustment. At a minimum, 

PSEG encourages the Agency to pursue this legislative path to obtain the necessary authority to 

enforce under Subtitle D if EPA believes this is the only impediment to a Subtitle D program for 

CCR’s.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
768

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09633-8

Organization1:Waterkeeper Alliance

Commenter1:Scott Edwards

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

C. States Continue To Do An Inadequate Job Of Regulating Coal Ash 

One of the major flaws of the Subtitle D option is that states would not be required to adopt the 

minimum national criteria promulgated by EPA for the safe management of coal ash. [Footnote 

57: EPA Proposed Rule, p. 171] While EPA optimistically expects that states will voluntarily 

incorporate the criteria into their laws and regulations, the fact remains that they are under no 

obligation to do so. [Footnote 58: EPA Proposed Rule, p. 171] In fact, if current state laws and 

practices are any indication, this expectation remains highly unlikely. 

In at least ten states that produce large amounts of coal ash, there is no law requiring monitoring 

of operating coal ash ponds. [Footnote 59: In Harm’s Way: Lack of Federal Coal Ash 

Regulations Endangers Americans and Their Environment, Thirty-nine New Damage Cases of 

Contamination from Improperly Disposed Coal Combustion Waste, Environmental Integrity 

Project, Earthjustice and Sierra Club August 26, 2010 Jeff Stant, Project Director, Editor and 

Contributing Author, p. ix, available at: 

http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pd 

(These states are: Alabama, Arizona, Georgia, Indiana, Ohio, MIssissippi, Missouri, New 

Mexico, and Tennessee).] In Texas, most coal ash disposal sites are not subject to any state 

regulation whatsoever. [Footnote 60: In Harm’s Way: Lack of Federal Coal Ash Regulations 

Endangers Americans and Their Environment, Thirty-nine New Damage Cases of 

Contamination from Improperly Disposed Coal Combustion Waste, Environmental Integrity 

Project, Earthjustice and Sierra Club August 26, 2010 Jeff Stant, Project Director, Editor and 

Contributing Author, p. vi, available at: 

http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.pd 

The same goes for Alabama. [Footnote 61: “Hundreds of Coal Ash Dumps Lack Regulation,” by 

Shaila Dewan, The New York Times, January 6, 2009, available at: 

http://www.nytimes.com/2009/01/07/us/07sludge.html] In Tennessee, home to five proven 

damage cases and the TVA’s massive spill of over 1 billion gallons of coal ash slurry, coal ash 

impoundments are still unregulated, and there are no standards for structural integrity, 

groundwater monitoring, corrective action, or post-closure care. [Footnote 62: The State of Coal 

Ash Regulation in Tennessee, report by Southern Alliance for Clean Energy, October 26, 2010, 

p. 2, available at: 

http://www.cleanenergy.org/images/files/TN%20Regulatory%20and%20Damage%20Report1.pd
769

f] Nor are there any regulations that cover transportation of coal ash before its disposal. 

[Footnote 63: The State of Coal Ash Regulation in Tennessee, report by Southern Alliance for 

Clean Energy, October 26, 2010, p. 10, available at:

http://www.cleanenergy.org/images/files/TN%20Regulatory%20and%20Damage%20Report1.pd

f] Despite documented cases of groundwater and surface water contamination at structural fill 

sites, North Carolina does not require permits, liners, or groundwater monitoring for these sites, 

nor does the state require regular inspections. [Footnote 64: Unlined Landfills? The Story of 

Coal Ash Waste in our Backyard, Sierra Club, North Carolina Chapter, April 7, 2010, p. 6, 9-10, 

available at: http://nc.sierraclub.org/work/docs/FINAL_coal_ash_report.pdf] North Carolina has 

75 of these sites across the state, with 17 concentrated in a single county. [Footnote 65: Unlined 

Landfills? The Story of Coal Ash Waste in our Backyard, Sierra Club, North Carolina Chapter, 

April 7, 2010, p. 5, available at: http://nc.sierraclub.org/work/docs/FINAL_coal_ash_report.pdf] 

Clearly, if states were serious about regulating coal ash, they would already be doing so. 

The amount of damage caused by coal ash in certain states, as well as monies paid for corrective 

action and lawsuit settlements, reveals the true cost of these states’ weak and often nonexistent 

regulations. In Pennsylvania, the release of water and fly ash from a power plant to the Delaware 

River in 2005 cost approximately $37 million to clean up. [Footnote 66: EPA Proposed Rule, p. 

40] The failure of a discharge pipe at a plant in Alabama cost $9.2 million to correct a 6.1 

million gallon release from an FGD pond. [Footnote 67: EPA Proposed Rule, p. 40] The 

residents of Gambrills, Maryland recently settled a lawsuit for $45 million with a company that 

had dumped 3.8 million tons of coal ash into gravel pits, and 84 wells were contaminated with 

toxic pollutants. [Footnote 68: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for 

Public Integrity report, February 19, 2009, available at: 

http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r

elated_heds&utm_campaign=related_bottom] Similarly, owners of a plant in Colstrip, Montana 

paid $25 million in settlement to residents, after coal ash ponds were discovered to have polluted 

entire aquifers. [Footnote 69: Coal Ash: The Hidden Story, by Kristen Lombardi, Center for 

Public Integrity report, February 19, 2009, available at: 

http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r

elated_heds&utm_campaign=related_bottom] Not surprisingly, in Montana, these types of ponds 

are exempt from state regulation. [Footnote 70: Coal Ash: The Hidden Story, by Kristen 

Lombardi, Center for Public Integrity report, February 19, 2009, available at: 

http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r

elated_heds&utm_campaign=related_bottom] 

Many of Waterkeeper Alliance’s US member programs experience problems with coal ash that 

has been stored or disposed of improperly, where state officials simply refuse to take corrective 

action, or address the harmful environmental impacts of these hazardous waste dumps. Despite 

obfuscation efforts by state officials regarding coal ash regulations and effluent limit guidelines, 

Waterkeeper Alliance’s US member programs continue to collect data and issue reports that 

document the negative impacts of CCRs. 

The need for regulation of coal ash ponds in North Carolina has been well documented by NC 

Riverkeepers. The EPA recently “identified a total of 431 units managing slurried CCRs at 162 

facilities...Forty-nine (49) of these units at 30 different locations have been assigned a high 
770

hazard potential rating, using the criteria developed by the National Dam Safety Program.” 

[Footnote 71: Environmental Protection Agency, Fact Sheet: Coal Combustion Residues (CCR) 

– Surface Impoundments with High Hazard Potential Ratings, available at: 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccrs-fs/ (last visited Aug. 19 2010). 

[hereinafter EPA]] The high hazard rating “indicates that a failure will probably cause loss of 

human life.” [Footnote 72: Id.] Of the 49 high hazard sites identified nationally, 12 of the units 

are located in North Carolina. [Footnote 73: Id.] 

On September 28, 2010 Cape Fear Riverkeeper Kemp Burdette investigated and documented a 

breach in the Progress Energy coal ash pond dam at its Sutton coal fired power plant just outside 

of Wilmington, NC. He found a hole in the dam nine feet deep and twenty two feet wide caused 

by heavy rainfall. The breach appeared so suddenly that Progress Energy employees drove a 

truck into it while inspecting the dam. [Footnote 74: Deluge takes Toll on Roads, Ash Pond,

Sewers. Star News. Wilmington, NC September 28,2010 available at 

http://www.starnewsonline.com/article/20100928/ARTICLES/100929663/1177?Title=Delugetak

es-toll-on-roads-ash-pond-sewers], [Footnote 75: Progress Energy plugs leak at rain soaked ash 

pit. News and Observer. Winston Salem, NC available at 

http://blogs.newsobserver.com/business/progress-energy-plugs-leak-at-rain-soakedcoal-ashpit#ixzz10wuH6Nfj] As this recent example and the TVA Kingston coal ash pond failure in 

December 2008 indicate, coal ash ponds dams are prone to sudden failure and are not 

responsibly maintained. 

Over the last decade, Duke and Progress Energy tested groundwater surrounding the North 

Carolina coal ash ponds for contamination. Of the thirteen tested ponds all were found to have 

violations of NC groundwater standards. A report by Appalachian Voices and the Upper 

Watauga Riverkeeper summarized the contamination: 

Water sample results from ground water monitoring wells surrounding 13 coal ash ponds 

operated by Progress and Duke Energy were analyzed. A total of 681 exceedences were found 

for arsenic, boron, cadmium, chloride, iron, lead, magnesium, pH, and total dissolved solids. The 

level of exceedences ranged from 1.1 to 380 times higher than the NC ground water standard. 

[Footnote 76: Appalachian Voices and Upper Watauga Riverkeeper, North Carolina Coal Ash 

Pond Groundwater Contamination Analysis, October 6, 2009, 1 available at: 

http://appvoices.org/resources/AV_Report_on_NC_Coal_Ash_Pond_Violation_Analysis_Oct_2

009.pdf (last visited Aug. 19, 2010). [hereinafter Appalachian Voices]] 

In addition to the data provided by the monitoring described above, the lack of additional 

monitoring outside the 250-500ft “compliance boundary” is a serious risk to public health of the 

citizens of North Carolina: 

Detailed analysis of the monitoring data clearly indicates that pollutants are leaching from NC 

coal ash basins and contaminating groundwater. NC law does not require the power companies 

to clean up the toxic pollutants until it extends far beyond the boundary of the coal ash pond and 

reaches an arbitrarily identified “compliance boundary”. [Footnote 77: Id. at 3.] 

For instance, Duke Energy provided the State with no data beyond the “compliance boundary”, 
771

because they are not required to monitor there, thus they have no reported violations outside the 

compliance boundary and are not required to conduct any corrective action. [Footnote 78: Id. at 

2.] The Appalachian Voices and the Upper Watauga Riverkeeper report analyzed the violations 

in conjunction with existing State law, concluding that “[i]n the absence of strong federal 

regulation classifying coal ash as a hazardous waste, NC groundwater law is not adequate to 

address the pollution problems that currently exist at coal ash ponds around the State.” [Footnote 

79: Id. at 2.] 

On June 23, 2010 French Broad Riverkeeper Hartwell Carson tested water, sediment and fish 

from waterways below the discharge of the Progress Energy Skyland coal ash pond in Asheville, 

NC. The test results clearly demonstrate that the Asheville plant is having a direct impact on the 

French Broad River and its aquatic life. Arsenic in water samples was over 3.5 times the water 

quality standard for fresh water aquatic life and approximately 18 times higher than the water 

quality standard for drinking water and human health. Selenium levels in the water were 

approximately 14 times the state limit for freshwater aquatic life. Fish tissue test results indicate 

that selenium is bio-accumulating in shiners at levels as high as 7.1 parts per million. (See 

attached pace analytical test result data). Historical background levels of selenium in fish in the 

French Broad River are generally less than 0.5 ppm, which means that the shiners in the creek 

below the Skyland coal ash pond have selenium levels that are 14.2 times higher than 

background (see attached background fish tissue levels from the French Broad River in NC). As 

Dr. Dennis Lemly and other researchers have noted, selenium levels in fish above 4 ppm exceed 

the toxic threshold for which reproductive and physiological damage occurs. Therefore, this 

newly released test result data unambiguously confirms that coal ash contaminates water and 

aquatic life at levels that cause harm. Dust samples of coal ash were also taken from homes 

located next to the Progress Energy Skyland coal ash ponds. These samples reveal arsenic above 

EPA’s regional screening level for soil and air. 

On April 29, 2010 Catawba Riverkeeper David Merryman tested surface water and sediments 

near the Clean Water Act NPDES permitted outfall of Duke Energy’s Riverbend Steam Station 

along the Catawba River at Mountain Island Lake, the primary drinking water supply for the 

North Carolina cities of Charlotte, Cornelius, Davidson, Gastonia, Huntersville, Matthews, Mint 

Hill, Mount Holly and Pineville. Catawba Riverkeeper found arsenic concentrations of 26 parts 

per billion in lake surface water, near where the outfall enters Mountain Island Lake. This 

represented a concentration 2.6 times greater than North Carolina’s water quality standards for 

drinking water supplies and human health. A second sample taken 50 meters linearly from the 

first sampling location remained above the state’s water quality standard for a water supply with 

at a concentration of 17.6 parts per billion. Sediments tested from Mountain Island Lake near its 

confluence with Riverbend Steam Station’s coal ash pond effluent showed elevated 

concentrations of arsenic, barium, chromium, lead, mercury, selenium and PCBs with parts per 

billion concentrations of 12,700; 51,500; 13,000; 4,700; 12; 12,000 and 78.2; respectively. A 

composite sample of five largemouth bass, Micropterus salmoides, of similar size class from 

Mountain Island Lake downstream of the coal ash pond outfall resulted in parts per billion 

concentrations of 170, 970 and 70.7 for selenium, mercury and PCBs, respectively. These results 

indicated exceedances of state water quality standards for drinking water supplies and human 

health, yet the state’s Division of Water Quality has permitted these discharges through its 

NPDES program for decades and is in the process of re-issuing NPDES permits without heavy 
772

metal concentrations limits for known coal ash constituents. 

In Tennessee, our Upper Watauga Riverkeeper created a research team of aquatic toxicologists 

and ichthyologists from Appalachian State University and the Tennessee Aquarium Conservation 

Institute and to test the environmental impact of the TVA coal ash spill on the Emory, Clinch and 

Tennessee Rivers. Over the last two and a half years, the research team collected more than 

1,000 water, sediment and fish samples since the spill occurred in December of 2008. Pasted 

below are some of the morphological impacts to fish that have been documented by the TVA 

coal ash spill research team: 

[Please see attachment to view a picture of a channel catfish (Ictalurus punctatus) collected from 

ERM 2.2 (the spill zone) on January 8, 2009 weighed 439 grams and contained 34 grams of ash 

in the gut, intestines and anal cavity, which means 7.7% of the body weight of the catfish was 

ash. This is equivalent to a 150lb man eating >11 lbs of ash. 

[Please see attachment to view a picture of a Largemouth bass (Micropterus salmoides) collected 

on January 8, 2009 from Emory River Mile 2.2(ERM 2.2)] 

[Please see attachment to view a picture of the Histological sections of catfish gills] 

[Please see attachment to view a picture of a normal largemouth bass] 

[Please see attachment to view a picture of a compromised Largemouth Bass] 

[Please see attachment to view a picture of a juvenile blue gill sunfish (Lepomis microlophus) 

exhibiting exopthalmus (“popeye”)collected from Tennessee River mile 567.5 January 2010, two 

years after the spill occurred.] 

[Please see attachment to view a picture of a Normal Bluegill sunfish and Popeye Bluegill 

sunfish] 

[Please see attachment to view the graph titled “Percentage of fish caught with external 

anomalies at each site from Jan 2009 to Sept 2010] 

On January 1st and May 15th, 2009 the Appalachian Voices Upper Watauga Riverkeeper 

released two reports detailing the results of water, sediment and fish tissue testing. These reports 

are attached and incorporated by reference in their entirety (see appendix XX). On December 27, 

2008, arsenic levels in the Emory River below from the TVA coal ash spill tested at close to 300 

times the allowable levels in drinking water, while a sample from two miles downstream still 

revealed arsenic at approximately 30 times the permissible limit. Lead was present at between 2 

to 21 times the legal drinking water limits, and thallium levels tested at 3 to 4 times the allowable 

amounts. All water samples from the Emory River were found to contain elevated levels of 

arsenic, barium, cadmium, chromium, lead, mercury, nickel and thallium as a result of coal ash. 

The majority of coal ash ponds in the United States are situated along rivers. When they fail, 

they take away a communities inalienable right to enjoy waters of the United States. 
773

[Please see attachment to view a picture of an EPA advisory on the Emory River] 

In Alabama, Hurricane Creekkeeper John Wathen tested surface water and drinking water wells 

surrounding the Perry County landfill on March 20, 2010. EPA drinking water standards and/or 

aquatic life water quality criteria were exceeded more than 25 times for arsenic, cadmium, 

copper, lead, selenium and zinc. Our Satilla Riverkeeper in Georgia is fighting a project which 

brings coal ash in from Florida and dumps it in a creek bottom tributary of the Satilla River. In 

North Carolina, where the state permits the dumping of coal ash directly into the Catawba River, 

our Catawba Riverkeeper has documented significant impacts on water quality. In that 

watershed, the Riverkeeper found levels of arsenic coming out of the coal ash pond in Mountain 

Island Lake, a primary drinking water source, at about 3 times the safe drinking water standards. 

Our Hurricane Creekkeeper has thoroughly documented in photographs and with interviews the 

environmental and human health atrocity in Perry County, Alabama from the irresponsible 

transfer of the TVA coal ash. 

As demonstrated by these and other real world examples, the disorganized patchwork of state 

regulations that has existed up to this point has simply not been effective in protecting human 

health and the environment from the dangers of coal ash. The residents of these states deserve a 

strong, comprehensive, and enforceable strategy for dealing with this massive waste 

management problem, a system that can only be accomplished under Subtitle C. Regulation 

under Subtitle C will make sure that coal ash is safely managed from cradle-to-grave, and that 

necessary requirements such as permit issuance, liners, groundwater monitoring, run-off 

controls, and financial assurance are put into place. [Footnote 80: EPA Proposed Rule, p. 43] 

Only Subtitle C has the “teeth” required to properly address the problem of coal ash.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule. The commenter is 

also referred to the supporting documentation and preamble discussion on damage cases.

Comment Number: EPA-HQ-RCRA-2009-0640-09766-1

Organization1:Labadie Environmental Organization (LEO)

Commenter1: Scott White, Washington University Environmental Law Clinic on behalf of the 

Labadie Environmental Organization (LEO)

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

The crucial difference between subtitles C and D is that the former involves EPA in the key 

regulatory role, whereas the latter keeps in place the existing system with states providing 

whatever regulatory oversight may exists. LEO strongly believes that the proposed regulations 

under RCRA Subtitle D (including the D-prime variation) would not adequately protect the 
774

health and environment in Missouri, and urges EPA to regulate disposal of coal combustion 

waste under Subtitle C. As these comments demonstrate, using our experience in Missouri as an 

example, state regulatory control of coal ash has not protected the public health or the 

environment.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09808-3

Organization1:Wyoming Outdoor Council

Commenter1: Bruce Pendery

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

The lesser effectiveness of the subtitle D approach, which would primarily be implemented by 

the states, is emphasized by what EPA acknowledges are "gaps" in state regulation of these 

dangerous compounds. Not all states that have coal fired utilities have permit programs for 

landfills, and an even lesser percentage of states have permitting programs for surface 

impoundments. Thirty-six percent of the states do not have liner requirements for CCR landfills 

and 67 percent do not have CCR liner requirements for surface impoundments. Nineteen percent 

of the states do not have minimum groundwater monitoring requirements for landfills and 61 

percent do not have groundwater monitoring requirements for surface impoundments. Thus state 

regulation of CCRs appears significantly deficient, and assuming they would have improved 

performance under a subtitle DCCR program largely entrusted to their discretion seems 

misplaced. There is a need for consistent federal standards and a level playing field nationwide, 

and the subtitle C approach would achieve that. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09885-20

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
775

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has the authority to develop Subtitle D rules administered by the states with direct EPA 

enforcement authority

One of EPA’s stated concerns with the Subtitle D option is that it would not allow EPA to 

require the states to implement the Subtitle D CCR controls through state permits, approve the 

adequacy of the state programs or enforce the regulations against non- compliant facilities. This 

concern is misplaced. EPA is underutilizing the full scope of its authority under Subtitle D by 

looking solely to RCRA Section 4004 for purposes of developing Subtitle D controls for CCRs. 

EPA can utilize the same combination of RCRA statutory authorities (i.e., RCRA Sections 

4010(c) and 4005(c)) for establishing controls for CCR disposal units that it employed in 

promulgating federally enforceable Subtitle D rules for municipal solid waste landfills and for 

non-MSWLFs that receive household hazardous waste and small quantity generator waste under 

40 CFR Parts 257 and 258.

The combination of these two Subtitle D provisions enables EPA to promulgate nonhazardous 

waste rules for CCRs that can be directly administered through state permitting programs and 

backed by direct EPA enforcement powers in those states that fail to adequately implement the 

federal rules. Such an approach offers a win-win for EPA: it provides the agency with the 

enforcement authority it desires under a Subtitle D CCR regulatory program while enabling the 

states to have a prominent role in the administration of any Subtitle D CCR rules, thereby 

preventing the duplication of federal and state controls in keeping with the Bevill amendment.

Progress Energy appreciates that development of a proposed Subtitle D regime allowing for 

administration of the regulations by qualified state programs, whether under RCRA section 

4010(c) or through some other mechanism, will necessitate issuance of a supplemental proposal. 

Nonetheless, this additional procedural step is necessary to ensure promulgation of an 

environmentally sound regulatory program for CCRs that allows for appropriate state 

involvement. Such an approach is consistent with the rulemaking record and the dictates of the 

Bevill amendment

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-8

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
776

Other Sections: 4.5 2.1.3 2.1.4

Comment Excerpt Text:

In its proposal, EPA appears to ignore the long rulemaking record relating to CCRs. Over the last 

twenty years, EPA has provided two Reports to Congress and issued two Regulatory 

Determinations that unequivocally found that CCRs do not warrant regulation as a hazardous 

waste. Further, the Reports reiterate the fact that states are the most appropriate regulatory 

agencies for regulation of CCRs and noted that EPA would retain its existing regulatory 

authority under RCRA's imminent and substantial endangerment provisions under RCRA 

Section 7003. If EPA is now concerned with its ability to enforce a Subtitle D program, EPA 

should look to the federal enforceable regulations for municipal solid waste landfills 

("MSWLFs") under 40 CFR Part 258, as authorized by RCRA Sections 4010(c) and 4005(c) for 

guidance. The MSWLF regulations provide states with program implementation and regulatory 

authority over MSWLFs while allowing EPA to step in when states do not fulfill their 

obligations. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10019-6

Organization1:Spalding & Hilmes, PC

Commenter1: Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et 

al

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

EPA's other proposed approach is inadequate to fill the gaps and relies too heavily on states. 

Subtitle D of RCRA establishes a framework for Federal, State, and local government 

cooperation in controlling the management of nonhazardous solid waste. The federal role is to 

provide minimum nationwide standards for protecting human health and the environment, and to 

providing technical assistance to states for planning and developing their own waste management 

practices. The actual planning and direct implementation of solid waste programs under RCRA 

subtitle D remains a state and local function, and the act authorizes States to devise programs to 

deal with State-specific conditions and needs. In contrast to subtitle C, RCRA subtitle D 

requirements relate only to the disposal of the solid waste, and EPA does not have the authority 

to establish requirements governing the generation, transportation, storage, or treatment of such 

wastes prior to disposal. Moreover, EPA would not have administrative enforcement authority to 

enforce any RCRA subtitle D criteria for CCR facilities, authority to require states to issue 

permits for them or oversee those permits, nor authority for EPA to determine whether any state 

permitting program for CCR facilities is adequate. Subtitle D of RCRA also provides less 
777

extensive authority to establish requirements relating to the cleanup (or corrective action) and 

financial assurance at solid waste facilities. Under subtitle D, EPA would establish national 

criteria for location standards, composite liner requirements (new landfills and surface 

impoundments would require composite liners; existing surface impoundments without liners 

would have to retrofit within five years, or cease receiving CCRs and close); groundwater 

monitoring and corrective action standards for releases from the unit; closure and post-closure 

care requirements; and requirements to address the stability of surface impoundments. States or 

citizens could enforce the requirements under RCRA citizen suit authority; the states could also 

enforce any state regulation under their independent state enforcement authority

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10019-7

Organization1:Spalding & Hilmes, PC

Commenter1: Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et 

al

Commenter Type: Law Firm

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle C is the only option to ensure protection of human health and the environment from the 

impacts of CCR such as those suffered by our clients. The State of Indiana does not have the 

incentive or resources to operate and enforce a program to regulate CCR under subtitle D in a 

way that will be protective. According to the CCR rule preamble, Indiana is third largest 

generator of CCR in the nation. Furthermore, Indiana relies heavily on coal-fired electricity 

generation, and promotes its low cost in attracting jobs to Indiana. The true costs of coal-fired 

electricity, such as the impacts on human health and the environmental, are not factored into the 

electricity rates Indiana consumers pay. EPA estimates that Subtitle D regulations will have a 

48% compliance rate vs. 100% for Subtitle C. Even that rate is likely to be lower in Indiana 

where IDEM abolished its Office ofEnforcement in 2009. 

A clear example ofthe differences between subtitle C and subtitle D regulation is provided by the 

air requirements, which are of primary concern to our clients. Both subtitle C (§ 264.1308) and D 

(§257.80) require management of CCR landfills in a manner that does not violate 35 llg/m3, 

apparently based on the fine particulate (PM2.s) National Ambient Air Quality Standard. 

However, under subtitle C, EPA would be able to enforce this requirement, including using its 

authority to require the source to demonstrate compliance with this standard under Section 114 

of the Clean Air Act. Under subtitle D, federal enforcement tools would not be available, nor 

does IDEM have adequate tools to ensure compliance with this requirement. Furthermore, since 
778

subtitle C would be "cradle-to-grave" regulation, § 264.1308 includes requirements for the 

following: 

(d) Tanks, containers, buildings and pads used for the storage must be managed to control the 

dispersal of dust. Pads must have wind protection that will ensure comparable levels of control. 

(e) CCRs transported in trucks or other vehicles must be covered or otherwise managed to 

control the wind dispersal ofdust consistent with the standard in paragraph (a) ofthis section 

unless an alternative tandard has been established by the Regional Administrator. 

The subtitle D regulations do not include these requirements or otherwise address CCR handling

facilities, which are also a significant source of fugitive dust, in our clients' experience. 

For these reasons we strongly support and urge EPA to adopt the subtitle C version of the rules. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

In addition, the commenter is referred to the preamble discussion and regulatory language that

specifically addressees fugitive dust control at CCR landfills and CCR surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-10167-4

Organization1:Northern Plains Resource Council

Commenter1: Ed Gulick

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 3.1.1 7.1

Comment Excerpt Text:

Need for regulation

As shown by the problems outline above, federal oversight of CCR's is long overdue. The 

Montana DEQ has not had the capacity or wherewithal to deal with CCR's. Citizen's suits are 

only somewhat effective in addressing monetary costs to individual landowners. But these suits 

have not addressed the root of the problem, which is the fact that the ponds are leaking in the 

first place. The industry is not interested in fixing the problem and is more focused on containing 

it. This amounts to a bandaid on a broken arm. More proactive, enforceable action is needed.

Subtitle D regulations would result in no change for the State of Montana, leaving our members 

in Colstrip to foot the bill. This approach has obviously not worked in the 30 years since Colstrip 

has been in operation, and it will not work for the future years. On the other hand, Subtitle C 

regulations would provide citizens with a handle to address and perhaps stop coal ash problems 
779

early on through federal enforcement and involvement. The phasing out of wet storage would be 

a huge step toward solving some of the problems in Colstrip. Additionally, the industry's claim 

about a "stigma" surrounding beneficial uses is unmerited. The rules are written specifically to 

exempt beneficial uses and, as indicated by the EPA's own studies, would increase approved 

beneficial uses. It is time for industry to stop passing on its costs to ranchers and other citizens 

living in Colstrip and other areas affected by CCR's.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-47

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. EPA Has The Authority To Develop Subtitle D Rules Administered By The States With 

Direct EPA Enforcement Authority

One of EPA‘s stated concerns with the Subtitle D option is that it would not allow EPA to 

require the states to implement the Subtitle D CCR controls through state permits, approve the 

adequacy of the state programs, or enforce the regulations against non-compliant facilities. 75 

Fed. Reg. at 35194. This concern is misplaced. EPA is underutilizing the full scope of its 

authority under Subtitle D by looking solely to RCRA Section 4004 for purposes of developing 

Subtitle D controls for CCRs. 75 Fed. Reg. at 35193-35194. EPA can utilize the same 

combination of RCRA statutory authorities – i.e., RCRA Sections 4010(c) and 4005(c) – for 

establishing controls for CCR disposal units that it employed in promulgating federally 

enforceable Subtitle D rules for municipal solid waste landfills (“MSWLFs”) and for nonMSWLFs that receive household hazardous waste and small quantity generator waste under 40 

C.F.R. Parts 257 and 258.

The combination of these two Subtitle D provisions enables EPA to promulgate non-hazardous 

waste rules for CCRs that can be directly administered through state permitting programs and 

backed up by direct EPA enforcement powers in those states that fail to adequately implement 

the federal rules. Such an approach offers a win-win for EPA: it provides the Agency with the 

enforcement authority it desires under a Subtitle D CCR regulatory program while enabling the 

states to have a prominent role in the administration of any Subtitle D CCR rules, thereby 

preventing the duplication of federal and state controls in keeping with the Bevill Amendment.
780

1. RCRA Sections 4010(c) and 4005(c)

By way of background, RCRA Section 4010(c) was added to RCRA as part of the 1984 

Hazardous and Solid Waste Amendments for purposes of having EPA upgrade its regulations 

with respect to those Subtitle D facilities “that may receive hazardous household wastes or 

hazardous wastes from small quantity generators” (referred to by EPA as “CESQG wastes”), 

including “facilities potentially receiving such wastes.” 42 U.S.C. § 6949a(c). As EPA knows, 

the standards developed under this provision must be those necessary to “protect human health 

and the environment” and “[a]t a minimum [the criteria] for facilities potentially receiving such 

wastes should require groundwater monitoring as necessary to detect contamination, establish 

criteria for the acceptable location of new or existing facilities, and provide for corrective action 

as appropriate.” Id.

Section 4005(c), which was enacted as a companion provision to section 4010(c), directs the 

states to adopt the new regulations for Subtitle D facilities that may receive household or 

CESQG wastes and, of critical importance here, specifically authorizes EPA to enforce such 

regulations in those states that fail to adequately adopt the federal rules. Specifically, that section 

provides in pertinent part that, after EPA has promulgated the revised criteria under section 

4010(c) for the specified Subtitle D facilities, “each State shall adopt and implement a permit 

program or other system o[f] prior approval and conditions to assure that each solid waste 

management facility within such State which may receive” household or CESQG hazardous 

waste “will comply with” the revised criteria promulgated by EPA under RCRA § 4010(c) for 

such facilities. RCRA § 4005(c)(1)(B), 42 U.S.C. § 6945(c)(1)(B).

EPA is then required to determine whether each state “has developed an adequate program” to 

implement the revised criteria. RCRA § 4005(c)(1)(C), 42 U.S.C. § 6945(c)(1)(C). If EPA 

determines that a state has not done so, the Agency “may use the authorities available under 

sections 6927 and 6928 of this title [i.e., RCRA Subtitle C enforcement and inspection 

authorities]” to enforce such revised criteria. Id. EPA has correctly described this authority as 

“significant in that it represents the first authority for EPA enforcement of regulatory 

requirements under Subtitle D.” 53 Fed. Reg. 33314, 33383 (Aug. 30, 1988) (emphasis added). 

Therefore, the Agency has already acknowledged that Subtitle D regulations promulgated under 

these provisions of the statute are enforceable by EPA.

2. EPA‘s Implementation of Section 4010(c)

EPA‘s history in developing regulations under Section 4010(c) is informative in underscoring 

why the Agency can use this authority, in conjunction with RCRA section 4005(c), in 

establishing federally enforceable Subtitle D rules for CCRs. The Agency implemented the 

Section 4010(c) regulations in phases. In 1991, the Agency issued upgraded Subtitle D standards 

for all MSWLFs. These regulations (codified in the Subtitle D regulations at 40 C.F.R. Part 258) 

establish minimum federal criteria for MSWLFs, including location restrictions, facility design 

and operating criteria, liner requirements (for new MSWLFs), groundwater monitoring 

requirements, corrective action requirements, financial assurance requirements, and closure and 

post-closure care requirements. These criteria apply to any MSWLF that accepts any household 

waste, whether or not such waste would be considered a household hazardous waste. See 
781

definition of “municipal solid waste landfill unit” at 40 C.F.R. § 258.2. In other words, the 

Subtitle D regulations for MSWLFs promulgated under Section 4010(c) apply to all MSLWFs, 

even though such facilities may not actually receive household hazardous waste or CESQG 

hazardous wastes. [Footnote 35: This is consistent with the statutory language in section 4010(c) 

directing EPA to upgrade the Subtitle D standards for any Subtitle D facilities that “may” receive 

household hazardous waste or CESQG hazardous waste or may “potentially receive” such 

wastes.]

EPA recognized when developing the MSWLF rules that the scope of Section 4010(c) extends 

beyond MSWLFs to “the subset of solid waste disposal facilities ?that may receive hazardous 

household wastes or hazardous wastes from small quantity generators.‘“ See 53 Fed. Reg. at 

33322 (emphasis added). For example, EPA stated that it was “concerned about the estimated 

28,000 industrial solid waste disposal facilities and 2,600 construction/demolition landfills,” but 

was limiting the scope of this initial rulemaking “to MSWLFs because there are insufficient data 

currently available to develop requirements for these other facilities.” Id. at 33326.

In 1996, EPA issued its second round of Section 4010(c) regulations for nonmunicipal nonhazardous waste disposal units that receive CESQG hazardous waste. [Footnote 36: The 

timeframe for issuance of these second round of regulations was dictated by a lawsuit brought by 

Sierra Club alleging that EPA was required to issue its Section 4010(c) rulemakings by the 

statutory deadline in Section 4010(c). Without any adjudication of law or fact, EPA entered into 

a Consent Decree with Sierra Club agreeing to issue the second round of Section 4010(c) 

regulations by June 1, 1996. See Consent Decree in No. 93-2167 (D.D.C.).] These upgraded 

Subtitle D criteria establish standards pertaining to location restrictions, groundwater monitoring 

and corrective action. See 40 C.F.R. Part 257, Subpart B. Like the upgraded MSWLF Subtitle D 

rules, EPA has direct regulatory enforcement authority for these rules in states that the Agency 

determines have not properly implemented the revised criteria. See 61 Fed. Reg. 34252, 34266 

(July 1, 1996).

During this second rulemaking, EPA once again addressed the scope of Section 4010(c). A 

commentor pointed out that the statutory language in Section 4010(c) directing EPA to upgrade 

the Subtitle D criteria for facilities that “may receive” CESQG hazardous waste and for 

“facilities potentially receiving” CESQG hazardous waste required the rules to extend to all 

Subtitle D facilities that could accept such wastes (even if they in fact did not receive CESQG 

hazardous wastes). Id. at 34254. At that time, however, EPA took the position that section 

4010(c) only was intended to reach facilities that actually received household hazardous or 

CESQG wastes. Id. [Footnote 37: EPA did not include CCRs in this second round of regulations 

because CCRs were on a different statutory study schedule than most other of the solid waste 

disposal facilities subject to the Section 4010(a) study schedule. USWAG agreed with EPA at 

the time that it would be premature to include CCRs in this rulemaking until the Bevill 

Amendment study process for CCR wastes was complete. Now that the Bevill study process is 

complete and EPA has determined that CCRs do not warrant hazardous waste regulation under 

RCRA Subtitle C, Section 4010(c) provides EPA with the appropriate statutory authority for 

adopting non-hazardous Subtitle D rules for CCRs.] In fact, however, Section 4010(c) does not 

contain this limitation, but applies to any Subtitle D facility that “may” or has the “potential” to 

receive household or CESQG hazardous wastes. The Agency itself recognized this broad 
782

statutory reach when it issued the Section 4010(c) regulations for MSWLFs, which apply to any 

MSWLF that “may” receive household hazardous waste or CESQG hazardous wastes, regardless 

of the fact of whether the MSWLF unit actually received such wastes.

3. Adoption of Regulations for CCRs under Section 4010(c)

The plain language of Section 4010(c) directs EPA to promulgate upgraded Subtitle D standards 

for “facilities that may receive” CESQG hazardous wastes and “for facilities potentially 

receiving such wastes.” 42 U.S.C. § 6949a(c) (emphasis added). This language applies on its 

face to CCR disposal units, as they are Subtitle D solid waste management units that, under 

RCRA‘s statutory scheme, may receive CESQG hazardous waste and clearly have the potential 

to receive such wastes. Indeed, the legislative history to Section 4010(c) underscores that 

Congress did not intend EPA to construe the statute in such a narrow manner, as “[t]he impetus 

for requiring these revisions is primarily the concern for potential disposal of hazardous 

materials with nonhazardous wastes. S. Rep. No. 98-284, at 50 (1983), reprinted in “A 

Legislative History of the Solid Waste Disposal Act, As Amended,” at 2076 (1991). In short, 

nothing in the plain language of the statute limits these provisions to only those facilities that 

“actually receive” household hazardous wastes or CESQG wastes. If Congress had intended to 

limit the statute in this manner, it would have written the law to say just that; it did not.

In light of the above, USWAG urges EPA to re-evaluate its statutory authorities under RCRA 

Sections 4010(c) and 4005(c) as applied to CCR disposal units. Section 4010(c) directs EPA to 

establish fully protective Subtitle D disposal standards for CCRs, including: groundwater 

monitoring as necessary to detect and respond to groundwater contamination, corrective action, 

and criteria for the acceptable location of new or existing facilities. These criteria are fully 

consistent with the proposed Subtitle D controls in the instant proposal.

Equally important, development of CCR regulations under Section 4010(c) would allow for a 

meaningful and coordinated state role in the administration of the CCR rules, while providing 

EPA with direct enforcement authority in those states that fail to properly implement the federal 

rules. This balancing of the federal/state roles will ensure that there is a full and uniform 

application of the CCR Subtitle D rules in all the states and would avoid the duplication of 

federal/state CCR controls as directed by the Bevill Amendment.

As noted above, USWAG appreciates that development of a proposed Subtitle D regime 

allowing for administration of the regulations by qualified state programs, whether under RCRA 

Section 4010(c) or through some other mechanism, will necessitate issuance of a supplemental 

proposal. Nonetheless, this additional procedural step is necessary to ensure promulgation of an 

environmentally sound regulatory program for CCRs that allows for appropriate state 

involvement. Such an approach is consistent with the rulemaking record and the dictates of the 

Bevill Amendment.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 
783

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-56

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Lastly, as EPA knows, subtitle D regulations are not federally enforceable. EPA cannot leave 

unmotivated states and private citizens to undertake the extraordinarily resource-intensive task of 

enforcing the subtitle D criteria through citizen suit litigation. Given the overwhelmingly 

widespread damage that is occurring as a result of unsafe disposal across the country, it would be 

impossible to achieve effective enforcement at the scale that is needed through private actions. 

The inevitable outcome of “D” regulation is unchecked damage to human health and the 

environment in violation of RCRA.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10592_DC-006-1

Organization1:Environmental Integrity Project (EIP)

Commenter1:Lisa Widawsky

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Although Pennsylvania has among the most extensive coal ash disposal regulations in the 

country, requiring liners, groundwater monitoring, and other protections that many other states in 

the country still lack in the absence of a federal Subtitle C RCRA regulation, its coal ash 

regulatory system is fraught with gaps that make the Subtitle C regulation a necessity for the 

protection of Pennsylvanians as well.

The Pennsylvania regulations have grandfathered out of regulation disposal sites that were active 

before the regulations were promulgated in 1992, and have left dangerous loopholes that permit, 

and even promote, dangerous “so-called beneficial uses” like reclamation of abandoned mines 

with coal ash. These deficiencies in the state regulatory scheme have put communities at risk 

despite the state’s intention to regulate this toxic waste stream with more stringent regulations 
784

than most other states and especially most other coal states. I’d like to talk today about some of 

the people I have met and how an EPA Subtitle C regulation is the only regulatory mechanism 

that will save them from the perils of mismanaged disposal of coal ash.

When you are deciding whether to regulate coal ash under the federally enforceable Subtitle C or 

the “suggested guideline” that is Subtitle D, please think about the 30-year old man who bought 

his first house and had begun to make costly improvements when his drinking well, about 1,000 

yards from FirstEnergy’s unlined Little Blue Run surface impoundment that was featured in EIP, 

Earthjustice, and Sierra Club’s most recent damage case report, was measured to be 

contaminated with arsenic over the maximum contaminant level, causing him to abandon his 

home. Is his hard-earned savings and his life worth the cost it would have taken FirstEnergy to 

dispose of their coal ash in a lined landfill?

Despite numerous letters and Notice of Violations from P ADEP for fugitive dust emissions and 

arsenic pollution, and despite the Planning Commission’s vote not to further expand this large 

impoundment, FirstEnergy is asking residents to sign waivers allowing FirstEnergy to dump in 

violation of Pennsylvania regulations establishing a mandatory setback. Because Little Blue (a 

misnomer for an impoundment permitted to occupy 1,694.9 acres, or 18% of the landmass of 

Greene Township, P A) was permitted before the Pennsylvania coal ash regulations were 

promulgated before 1992, FirstEnergy has been permitted to continue dumping arsenic-laden 

coal ash there, to the tune of up to 1 to 3 million gallons per day, and even secured an expansion 

in 2006 dump ash at a higher elevation in the impoundment than ever before allowed. This High 

Hazard impoundment is kept back from the Ohio River and the Ohio community that lives 

immediately across it by only an earthen dam, the largest of its kind in the United States. A 

federal Subtitle C regulation would require First Energy to phase out dumping of coal ash at this 

impoundment, daily cover, and several other requirements that would protect this community 

from the arsenic-laden fly ash and flue gas desulfurization sludge that is this town’s most 

unwelcome neighbor.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule. Discussion of 

damage cases can be found in Unit XI of the preamble as well as the technical support 

document found in the docket supporting this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-10594_DC-008-2

Organization1:Physicians for Social Responsibility (PSR)

Commenter1:Barbara Gottlieb

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:
785

For that reason, Physicians for Social Responsibility calls on the EPA to discharge its duty to 

protect the environment, by applying the strictest possible levels of control over coal ash 

disposal. We strongly support Subtitle C as the only option currently on the table that would 

adequately protect human health. We call for: 

- Federal regulation of coal ash disposal. State efforts are inconsistent and frequently too weak. 

- Phase-out of wet storage, which poses too great a risk of leaching, leaking and spilling.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10600_DC-014-3

Organization1:Izaak Walton League of America (IWLA)

Commenter1:Scott Kovarovics

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

The majority of states do not require basic safeguards at most coal ash landfills and ponds. Under 

the Subtitle C option, all states would set equivalent standards for the generation, storage, 

transport and disposal of coal waste, require permits for disposal facilities, and phase-out waste 

ponds. Proper disposal would require composite liners, leachate collection systems, adequate 

groundwater monitoring and corrective action, all of which are necessary to afford more 

adequate protection for public health, fish and wildlife.

Absent this comprehensive approach of Subtitle C, states would be given only suggested 

guidelines for disposal safeguards that states mayor may not choose to follow. Moreover, the 

EPA would have no authority to enforce the guidelines. This weak approach (Subtitle D) is 

completely inadequate to address proper handling and disposal of the second largest industrial 

waste stream in America.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10612_DC-026-1

Organization1:Earthjustice

Commenter1:Emily Greenlee
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Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 9.2.3

Comment Excerpt Text:

Over the past year, I have spent a great deal of time researching coal combustion waste, and have 

learned about the dangers of coal ash stored in unlined ponds, where it can contaminate 

groundwater with toxins like arsenic and lead. EPA’s own data shows coal ash can increase 

cancer risk for those living nearby to over 23,000 times the EPA’s acceptable cancer risk. Coal 

ash from an American company has also been blamed for a spate of skin lesions, respiratory 

ailments, and horrific birth defects in the Dominican Republic.

Given the serious health threats posed by coal ash, it is particularly troublesome that coal ash 

impoundments are disproportionately located in low-income communities, where residents are 

more likely to rely on groundwater supplies and less likely to have access to medical insurance 

and care.

According to the EPA’s own environmental justice analysis for the proposed coal ash 

regulations, the myriad risks of coal combustion waste, quote, “may have a disproportionately 

higher effect on low-income populations.” Earthjustice’s environmental justice analysis found 

that almost 70% of ash impoundments in the US are in areas where household income is lower 

than the national median.

I would like to enter into the record three maps, showing poverty rates and the location of ash 

impoundments in Alabama, Louisiana, and South Carolina. In South Carolina, about 16% of 

residents living near ash impoundments are below the poverty line. That number climbs to 

around 25% in Louisiana. These figures are well above the national average.

In Alabama, a map of which can be seen on this poster, around one-fifth of residents living near 

coal ash ponds are below the poverty line. All areas that show up in blue on the map have 

poverty rates that exceed the national average.

Most notoriously, the Arrowhead Landfill in Perry County (shown here, in a census tract with a 

33% poverty rate), has been the dumping ground for ash recovered after the TVA ash spill in 

Kingston, Tennessee, in December of 2008. The ash flowing into this low-income and 

predominantly African American community at a rate of about 8,500 tons per day contains 

dangerous levels of arsenic, lead, and other heavy metals.

Strict federal guidelines are needed to protect the low-income populations living near Arrowhead 

and other coal ash impoundments—particularly because Alabama is one of fifteen states which 

has explicitly stated that it will not adopt stricter state regulations if EPA chooses to regulate coal 

ash under Subtitle D.

As the TVA spill and dozens of other damage cases have demonstrated, state regulations of coals 

ash are often insufficiently protective of human health and the environment. Only federally 
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enforceable Subtitle C regulations can fully protect human health and the environment from coal 

ash, in low-income communities and throughout the United States.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10631_DC-046-3

Organization1:Sierra Club

Commenter1:Lyndsay Moseley

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We are having this conversation today because states have failed, time and again, to adopt and 

enforce such common sense safeguards, choosing cheap and easy disposal practices that threaten 

public health instead. Our technical comments will address our concerns in more detail, but 

evidence shows that too many states, through lack of regulation or lack of enforcement, allow 

dangerous coal ash disposal practices to persist. States around the country allow coal ash to be 

disposed of in unlined pits and ponds, used as structural fill without protections, or used in all 

manner of other unsafe "beneficial uses" where the arsenic, selenium and other toxins can seep 

out into groundwater and surface waters, rivers, lakes and streams.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10638_DC-078-1

Organization1:League of Conservation Voters (LCV)

Commenter1:Sara Chieffo

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:
788

I am here to encourage the EPA to adopt strong, federally-enforceable coal ash regulations. U.S. 

coal-fired power plants generate more than 130 million tons of toxic coal ash annually. Coal ash 

and other combustion wastes are not currently subject to federal regulation and most state laws 

are either far too weak or non-existent.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10670_DC-055-3

Organization1:Maryland Commission on Environmental Justice and Sustainable 

Communities

Commenter1:Vernice Miller-Travis

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 3.1.1 6.1.1

Comment Excerpt Text:

Drinking Water Is At Risk

Unfortunately states do not generally require off-site monitoring of drinking water wells beyond 

the fenceline, even when there is documented contamination at the coal ash waste site boundary. 

Where off-site sampling of private wells occurred, contaminated drinking water was found in 

every case. Even when groundwater is periodically sampled for pollutants state agencies usually 

fail to sample beyond Coal Combustion Waste property boundaries to see how far that pollution 

has traveled.

Many states require no groundwater monitoring at all, especially at coal ash ponds. Alabama for 

example is a large coal ash generating and receiving state, yet it does not require, via state law, 

groundwater monitoring at coal ash ponds while they are still operational. How then can they 

determine that the millions of tons of coal ash waste they are storing in landfills and ponds, such 

as the site in Uniontown, Perry County, Alabama, are not adversely affecting nearby residents, 

agricultural lands and groundwater?

Illegal open dumping in violation of federal law may be occurring. Many sites where 

groundwater is contaminated may be due to illegal open coal ash dumps according to federal 

law, based on high levels of metal found in groundwater at these sites. But because open Coal 

Combustion Waste dumping regulations are part of subtitle D of the Resource Conservation and 

Recovery Act (RCRA), US EPA has no authority to enforce these standards. Even though states 

have the authority to enforce the prohibition, it appears that some states may have ignored the 
789

federal law and allowed illegal CCW dumps to operate and contaminate drinking water sources. 

The failure of states to enforce RCRA subtitle D guidelines and the failure of plant operators to 

comply with those requirements indicates that "guidelines" under subtitle D are insufficient to 

guarantee compliance with federal safeguards.

Few CCW disposal sites are subject to Clean Water Act permits that monitor, or limit, the full 

range of toxic metals that are discharged from CCW disposal sites. At a minimum EPA must 

take basic steps to protect the off-site environment at CCW sites, and set limits on the discharge 

of leachate or wastewater that are based on best available treatment and containment standards, 

and which are designed to protect rivers and streams. This is particularly important in a state like 

Maryland where rivers and streams empty into the ecologically fragile and highly threatened 

Chesapeake Bay.

For these reasons and so many more, coal ash must be regulated under RCRA subtitle C, as 

special waste by US EPA, with all the attenuated safeguards that requires.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10684_DC-072-1

Organization1:Sierra Club

Commenter1:Margaret Hoerath

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 4.2.1

Comment Excerpt Text:

The status of coal ash regulation is a patchwork, unreliable system which varies state to state. 

This system does not adequately handle coal ash waste and often results in coal ash ponds that 

leak toxins. Subtitle C will change this, protecting public health. Federally enforceable standards, 

upheld by the EPA, are what we need. Citizen lawsuits, which are long, drawn out and hard for 

affected communities to afford, would be the only mode of enforcement under the weaker 

Subtitle D. Please support Subtitle C which will phase out coal ash ponds, and will effectively 

protect individual’s and communitie’s health and well-being.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
790

Comment Number: EPA-HQ-RCRA-2009-0640-10700_DEN-012-1

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

Good Evening. My name is Robert Gardner and I am Greenpeace USA’s Coalition and 

Partnership representative. I am here today to support your efforts to create a federal minimum 

coal ash disposal standard. It is clear that coal ash must be treated as a “special waste” under 

subtitle C of the Resource Conservation and Recovery Act. I am here representing our millions 

of members worldwide saying that coal ash is hazardous and that state by state enforcement is 

just not enough. We need federal regulation to ensure that dangerous coal ash isn’t just shipped 

to the state with the most lax regulatory scheme.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10700_DEN-012-3

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Business as usual will not protect the health and welfare of the American people. Responding to 

pressure from the utility industry, prior administrations have allowed the industry to ‘police 

itself’ or self-regulate under a patchwork of state directives leading to the extensive 

contamination of water and land by toxic heavy metals. This approach has not and will not 

protect streams, ponds, rivers, lakes and other waters.

Everyone in this room probably remembers the Kingston TV A Spill in Harriman, Tennessee? 

The failure of that sludge impoundment released over 1 billion gallons of toxic coal ash sludge 

over 300 acres, poisoning everything in its path. The response? It was “cleaned up” by shipping 

it on over to Perry County, Alabama, which currently has no regulations regarding disposal of 

coal ash. None. This is unacceptable.
791

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10747_DEN-059-3

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5.1 3.1.2

Comment Excerpt Text:

Moreover, one of EPA's stated concerns with the Subtitle D option is its perceived lack of federal 

enforceability under this approach. However, EPA does have the authority to issue federally 

enforceable Subtitle D rules for CCRs; it simply is not using that authority. I would refer EPA to 

the same RCRA provisions under which it issued federally enforceable Subtitle D rules for 

municipal solid waste landfills. The first provision is section 4010( c), which directs EPA to 

develop upgraded Subtitle D standards for facilities "that may receive" or may potentially receive 

"hazardous household wastes" or conditionally exempt small quantity generator wastes. A 

related provision is section 4005(c), which authorizes EPA to enforce these upgraded Subtitle D 

regulations in those states that fail to adopt the federal rules. EPA itself has described this 

authority as "significant in that it represents the first authority for EPA enforcement of regulatory 

requirements under Subtitle D." [Footnote 1: 53 Fed. Reg. 33314, 33383 (August 30, 1988)] 

CCR disposal facilities fall within the scope of EPA's authority under these provisions, as they 

are without question Subtitle D facilities that "may" accept household hazardous wastes and 

CESQG wastes, and clearly have the "potential" to receive such wastes.

The development of Subtitle D regulations for CCRs under section 4010 of RCRA offers a winwin option for EPA and the public. While this approach would likely require a supplemental 

proposal, it will ensure that EPA will "get it right:" providing the Agency with the enforcement 

authority it desires, while avoiding the unnecessary and adverse implications of Subtitle C. There 

is simply no reason for EPA to pursue the Subtitle C approach when it can develop federally 

enforceable rules for CCRs under the less controversial, yet equally protective, Subtitle D nonhazardous waste program. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10995_CHA-030-2

Organization1:Concerned Citizens of Giles County, Virginia

Commenter1:Darlene Cunningham

Commenter Type: Advocacy Group
792

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3 3.1.1

Comment Excerpt Text:

These hearings would not be necessary if states and industry were genuinely concerned about 

protection of our water and if they were disposing of their waste responsibly. The fact is, there 

must be effective, enforceable federal regulation for coal waste if public health is to be valued 

over corporate profits. Subtitle C is the only rational choice. It is time to listen to citizens whose 

lives have been impacted by illness, contaminated wells, loss of property, and loss of property 

value due to this toxic waste. It is time to listen to the biologists, it is time to listen to the 

Riverkeepers, it is time to take seriously the numerous studies, including EPA’s own Risk 

Assessment, which has made very clear the dangers of coal waste.

After decades of debate, decades of intense lobbying from industry, and decades of inaction, it is 

now time to regulate coal waste for what it is ... a clear and present danger to public health!

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11018_CHA-053-2

Organization1:Sphere One, Inc.

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

The environment can be protected with strong regulations under Subtitle D. We in the recycling 

CCP industry support strong regulation of CCRs under Subtitle D with federal enforcement 

authority. The EPA can't be afraid to lead! With our economy sputtering, you would think EPA 

could work with Congress, get direct enforcement authority and proceed to regulate CCRs under 

Subtitle D without creating this damaging stigma for CCP's!

If there is even SOME question about how a Subtitle C classification would be detrimental to 

business, why do it? Especially when there is a technically sufficient solution that carries 

virtually no risk to beneficial use of CCP's. A Subtitle D classification allows the EPA to live up 

to it's responsibilities to protect the environment as well as its responsibility to all the 

hardworking Americans whose livelihood depends on the reuse of CCP's. 

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 
793

Comment Number: EPA-HQ-RCRA-2009-0640-11195_CHI-026-3

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1:Mark A. Shepherd

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.2

Comment Excerpt Text:

We believe that the States have an important role to play in the regulation of CCRs and should 

take the lead on regulating these materials. The belief, that federal enforceability under the 

Subtitle D option is inadequate to assure that companies manage CCRs safely, is erroneous. The 

regulations will be enforceable by the States and the public. Violators will be subject to 

significant civil penalties, just as they are now for municipal solid waste landfills that have at 

best similar challenges and at worst pose more risk than mono-filled CCR landfills operated 

under subtitle D. 

As published, the proposed rules also have numerous defects and problems, even under the 

Subtitle D option. They seem to have been hurriedly compiled and many parts of the rule are ill 

conceived and contradictive. 

We urge the EPA to withdraw the current proposal and to work to propose regulations under 

Subtitle D that recognize that CCRs can be managed responsibly by States without destroying 

the unique qualities of CCRs that allow them to be beneficially and safely reused. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11319_P-029-1

Organization1:Ebensburg Power Company

Commenter1:Gary Anderson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 8.6.2

Comment Excerpt Text:

EPA's motivation to propose these rules appears to be based on what EPA has termed "proven 

damage cases" siting two ash impoundment accidents at Kingston, TN and Martins Creek, PA. 
794

This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse 

impacts to the river, wildlife or human health and that the Tennessee Dept of Health found no 

significant human health impacts due to the Kingston accident. These findings combined with 

the safe management of the vast majority of ash sites and beneficial uses clearly indicate that 

EPA is acting in a capricious manner.

While EPA sites the NRC-NAS Study concerning ash in its preamble it ignores its scientifically 

based factual findings ... which include:

1. Enforceable federal standards should be established to ensure that STATES have specific 

authority and implement adequate safeguards.

2. Primary regulatory mechanisms that should be used to develop enforceable standards are:

• SMCRA, Joint OSM-EPA rules; or RCRA-D rules

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11357_P-071-7

Organization1:Sunbury Generation LP

Commenter1:Teresa Copenhaver

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

While EPA sites the NRC-NAS Study concerning ash in its preamble it ignores its scientifically 

based factual findings...which include: 

1. Enforceable federal standards should be established to ensure that STATES have specific 

authority and implement adequate safeguards. 

2. Primary regulatory mechanisms should be used to develop enforceable standards such as: 

- Surface Mining Control Reclamation Act, Joint Office of Surface Mining and EPA, or the 

Resource Conservation and Recovery Act Subtitle D Rules

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 
795

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11374_P-093-3

Organization1:United States Senate

Commenter1:Bob Casey

Commenter Type: Federal Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

• I believe, and have recommended to EPA, that CCBs continue to be regulated as nonhazardous, regardless of whether they are beneficially re-used or placed in a landfill or 

impoundment

• I am not advocating that changes in the regulation of CCBs are not needed

• The events in Kingston, Tennessee in 2008 have clearly shown the need for stringent Federal 

guidelines in how CCB landfills and impoundments are designed, engineered, constructed, and 

managed

• As such, I have also recommended to EPA that the Agency develop a set of strict, enforceable 

Federal design and engineering requirements under RCRA’s nonhazardous waste program for 

CCB landfills and impoundments

• And that these requirements include specific protocols for surface and ground water monitoring

• I believe that the continued regulation of coal combustion byproducts as non-hazardous under 

RCRA’s Subtitle D nonhazardous waste program is the most appropriate course of action for the 

Agency to take

• Coupled with the development and promulgation of Federally enforceable requirements for the 

storage and monitoring of these materials under Subtitle D, this will ensure the protection of 

Pennsylvania’s environment and the public health of our citizens

• While allowing Pennsylvania to continue to accrue the employment, economic, and 

environmental benefits of reusing these materials

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 
796

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-11572_L-020-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Dan Riedinger

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2 4.5.1

Comment Excerpt Text:

AS USWAG has testified at the last six hearings, the question for us is not whether to regulate 

CCRs, but how to regulate CCRS. We continue to believe, after listening to all the testimony, 

that “Subtitle D Prime” option, with appropriate adjustments, is the best path forward. 

USWAG appreciates that there are major differences of opinion regarding this rulemaking, but 

we are concerned that unless EPA is able to forge a consensus position, the question of whether 

and how to regulate CCRs will become a protracted battle in Congress and the courts. USWAG 

continues to believe, however, that a consensus position can be reached that meets the 

fundamental objectives of EPA and the varying stakeholder that is the development of federally 

enforceable standards for CCRs that are protective of human health and the environment. As 

EPA has pointed out, the substantive standards between the Subtitle C and Subtitle D standards 

are essentially identical. Both would provide for the safe management of coal ash through the use 

of liner systems, groundwater monitoring, and corrective action. 

Despite the similarities between the two options, opponents of Subtitle D approach are concerned 

that the states will not vigorously enforce the Subtitle D regulations; thus, they want EPA 

enforcement authority. Opponents of the Subtitle C option, including USWAG, are concerned 

that subjecting CCRs to hazardous waste regulation will result in excessive regulation, drive up 

energy costs and cripple beneficial use. 

Notwithstanding these differences, USWAG believes that there is a path forward that would 

address the concerns of most the views reflected in this room and, most importantly, will ensure 

the successful implementation of a protective CCR regulatory program in a timely manner.

Specifically, we continue to believe that EPA can develop federally enforceable Subtitle D 

controls for CCRs under the same authorities that it has used to develop federally enforceable 

Subtitle D controls for municipal solid wastes. USWAG has already provided EPA with the 

background of this approach so I won’t go into the details here. In short, however, we believe 

that EPA can use its authorities under the combination of RCRA sections 4010 and 4005 to 

direct the states to establish Subtitle D controls and permit requirements for CCR disposal 

facilities and to step in and directly enforce those Subtitle D regulations if the states fail to do so. 

EPA itself has acknowledged that these sections of RCRA are unique in that they provide EPA 

with federal enforcement authorities for Subtitle D rules. [Footnote 1: 53 Fed. Reg. 33314, 33383 
797

( August 30, 1988)]

The truth is that this approach – having EPA direct the states to implement federal controls and 

stepping in if the states fail to do so - is not fundamentally different than how the Subtitle C 

option would be implemented, though this Subtitle D approach would be implemented on a 

much quicker time schedule than would any Subtitle C option. It makes no sense to risk the 

downsides of the Subtitle C option when EPA can achieve essentially the same results without 

these risks under a federally enforceable Subtitle D option. This rulemaking is too important for 

EPA not get it right; therefore, we urge the Agency to be creative in using its existing authorities 

in Subtitle D to issue federally enforceable Subtitle D rules for CCRs. Such a result would be 

“win-win” for all involved. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11644_K-059-2

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The TVA ash spill has dramatically and tragically demonstrated the failures of relying on a 

patchwork of state regulation. It is imperative the EPA have direct oversight over the generation 

of storage, transportation, and the disposal of coal ash in order to safe guard the public and the 

environment. Subtitle D would continue to rely on a state- by -state patchwork of regulations, 

which has time and time again proven to be inadequate.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11736_K-162-1

Organization1:Environmental Intergrity Project (EIP)

Commenter1:Abel Russ

Commenter Type: Advocacy Group

Classification: Substantive
798

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1

Comment Excerpt Text:

1) States have failed to adequately regulate coal ash.

States would have primary regulatory authority under the subtitle D option, [Footnote 1: US 

EPA, Hazardous and Solid Waste Management System; Identification and Listing of Special 

Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule 

(hereinafter “Proposed Rule”), 75 Fed. Reg. 35128, 35159-35160 (June 21, 2010).] and we know 

from experience that state governments have not been able to keep up with the challenge of coal 

ash. [Footnote 2: Id. at 35152. There have been 137 documented damage cases from coal ash 

disposal throughout the country. See Environmental Integrity Project (EIP), Earthjustice, & 

Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and 

Their Environment 14 (Aug. 26,2010), available at 

http://www.environmentalintegrity.org/news_Reports/documents/INHARMSWAYFINAL2.pdf; 

EIP &Earthjustice, Out o/Control: Mounting Damagesfrom Coal Ash Waste Sites (Feb. 24, 

2010), http://www.environmentalintegrity.org/news_Reports/news_02 24_1 O.php; Sierra Club, 

Kentucky Waterways Alliance & Global Environmental, LLC, Slow Motion Spills: Coal 

Combustion Waste and Water in Kentucky (May 2010), available at 

http://kentucky.sierrac1ub.org/resources/Environmental_ Research/Coal_ Combustion_Waste 

_and_Water_In_KY 042110.pdf; U.S. Environmental Protection Agency (EPA) and EPA, Office 

of Solid Waste, CoalCombustion Waste Damage Case Assessments (July 9, 2007).] Here in 

Tennessee, for example, the regulatory regime separates the regulation of landfills from the 

regulation of surface impoundments. [Footnote 3: T.C.A. §69-3-108(b); Letter from Paul L. 

Sloan, TDEC Deputy Commissioner, to Josh Galperin, Southern Alliance for Clean Energy and 

Kimberly Wilson, Environmental Integrity Project, 1 (Sept. 7, 2010).] Although surface 

impoundments are likely to contaminate groundwater, they are only regulated at the point of 

surface water discharge. [Footnote 4: T.C.A. §69-3-108(b).] Landfills are regulated as solid 

waste, but many are eligible for lenient permits by rule which also fail to provide for effective 

groundwater monitoring. [Footnote 5: Tenn. Compo R. and Regs. 1200-01-07-.02(1)(c)(ii).]

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule. In particular the 

commenter is referred to the Agency’s discussion in Unit IV of the preamble for an analysis of 

state programs. 

Comment Number: TRANS-ARL-0004-1

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive
799

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 10.4.3

Comment Excerpt Text:

Coal ash recycling can be done safely and effectively, and it creates significant benefits: 

Environmental benefits, improved product performance benefits, and economic benefits. 

Citizens for Recycling First supports stronger regulation of coal ash disposal and does not object 

to federal enforcement authority over that program. But if getting federal enforcement authority 

requires designating coal ash a hazardous waste in any setting, the effects on recycling in the 

United States will be decimating. 

The hazardous waste stigma is real. A hazardous waste stigma presents significant barriers at 

every step of the chain, from the people who generate coal ash to the people who specify its use 

to the people who incorporate it in products, right down to the end-use consumers. How many 

people want to have something that's called hazardous waste somewhere else in their home or 

their school or their driveway or their roads or many of the places that we can use this material 

productively? 

While we appreciate EPA's statements that the Agency continues to support beneficial use, 

actions like creating the new label of "special waste" are not helpful in shielding the users from 

the potential liabilities of this. And actions like shutting down the coal combustion products 

partnership are actually having a detrimental effect to the recycling industry today well in 

advance of the conclusion of this rule. 

If the goal of this rulemaking is to protect the environment, then EPA should pursue policies that 

encourage more safe and effective recycling of coal ash as a preferred alternative to disposal. 

That means that we cannot use Subtitle C as a vehicle to promulgate those rules. 

Speaking for more than 1,500 citizens who care about the environment, please do not use 

Subtitle C as the way to enact these rules. We can improve disposal regulations in this country 

without destroying an industry that creates real benefits for our environment. 

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-ARL-0039-2

Organization1:Izaak Walton League of America

Commenter1:Scott Kavarovics

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Absent this comprehensive approach under Subtitle C, states would only be given suggested 

guidelines for disposal safeguards. Moreover, the EPA would lack enforcement authority. This 

weak approach under Subtitle D is completely inadequate to address proper handling and 

disposal of the second largest industrial waste stream in America.
800

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-ARL-0109-1

Organization1:Sierra Club

Commenter1:Drew Ball

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

We applaud EPA for recognizing the very real health and environmental risk posed by toxic coal 

ash. Given the seriousness of these risks, enforceable federal safeguards, not suggested state 

guidelines, are necessary to protect communities. Having done extensive work on coal ash within 

North Carolina, particularly with North Carolina state government, I can say firsthand that some 

states are not doing an adequate job of protecting communities from the dangers of coal ash. 

Strong federal safeguards needs to be issued quickly before more communities are exposed. 

Continuing to ignore scientific and safety concerns could come at a very high cost. 

North Carolina issued -- I'm sorry, the North Carolina Sierra Club issued a report on April 11th -

- April 12th of this year documenting how a lack of federal controls and weak state regulations 

have created a gaping loophole, allowing an unknown volume of coal ash to be disposed of with 

very little oversight and uncertain impacts to public health. This lack of oversight is placing the 

health of North Carolinians and our environment at risk. While some processes may render coal 

ash inert and, therefore, suitable for reuse, such as use in additive concrete, North Carolina's 

practice of allowing coal ash to be placed on the ground as fill material for land development 

with minimal oversight, has led to numerous problems. These problems include groundwater 

contamination, surface water contamination, sham landfills, environmental violations, and a 

failure to track locations of coal ash fills. The lack of federal regulation is what has led to the 

current failed patchwork of state protections against coal ash. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule. In particular, the 

commenter is referred to EPA’s analysis of state programs that can be found in Unit IV of the 

preamble.

Comment Number: TRANS-CHI-0003-1

Organization1:Citizens for Recycling First
801

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1 10.4.3

Comment Excerpt Text:

Today, I would like to make four key points that address common misconceptions that have been 

frequently stated at these series of public hearings. 

Number one: Coal ash does not qualify as a hazardous waste based on its toxicity. This is not an 

option. It is a fact that standardized tests show that the levels of metals in coal ash are below the 

amounts established for listing it as a hazardous waste. In recycling settings, the toxicity of coal 

ash is similar to the toxicity of the materials it commonly replaces. 

Number two: EPA's proposed Subtitle D and Subtitle C regulatory approaches are both 

protective of human health and the environment. The landfill construction standards proposed 

are essentially the same in both, and so EPA's Subtitle C proposal is not "stronger." The key 

differences between the proposals boil down to who gets to enforce the new regulations that EPA 

establishes, new regulations that are far from "business as usual" in either option. 

Number three: Stigma is real. Labeling coal ash as hazardous waste when it is disposed creates 

enormous barriers to recycling. Producers, marketers and users of coal ash have been unanimous 

in expressing this fact during the public hearings. The only people claiming the stigma is not real 

are people with no direct involvement in the recycling effort. 

And number four: Stigma is already taking a toll on recycling just as a result of this debate. 

Specifiers and users of coal ash are already beginning to remove the material from projects 

because of regulatory uncertainty and fear of future liabilities. Manufacturers of products that 

compete with coal ash are actively using this forum to make false claims about dangers of using 

coal ash. And we have seen numerous witnesses at these very hearings express fear regarding 

long established beneficial uses of coal ash, proving the point that the drumbeat of the terms 

"toxic" and "hazardous" dramatically affects consumer behavior. 

The people who work everyday to recycle coal ash are extremely disheartened by this debate. 

Many of them have devoted entire careers to do something good for the environment. They now 

feel betrayed by the Environmental Protection Agency and by environmental groups who appear 

resolved to ignore and sacrifice the benefits of recycling in their single-minded push for federal 

enforcement authority. 

New coal ash disposal regulations under Subtitle D will make meaningful improvements to 

disposal practices and do it faster than Subtitle C can. Subtitle D will protect human health and 

the environment, and will avoid the creation of an unnecessary and harmful hazardous waste 

stigma that will wreck efforts to safely and responsibly recycle millions of tons of material that 

otherwise will find its way to landfills. Subtitle D is the right choice for the environment. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 
802

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-CHI-0043-2

Organization1:

Commenter1:Aaron Turkewitz

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 4.2.1

Comment Excerpt Text:

Given this reality, it is clear to me that the EPA should and must adopt the strongest possible 

regulations to contain the toxins in coal ash. To begin with, coal ash should be regulated from 

cradle to grave. Many of the conditions in Subtitle D are inappropriate for dealing with 

hazardous waste. Both logic and history argue that it is unrealistic to expect an industry to police 

itself. 

Similarly, private citizen driven lawsuits, to expect private citizen driven lawsuits to be an 

effective counterbalance to industry power is unrealistic. While David and Goliath may be an 

appealing story, it's not a good model for ensuring the changes that are required to safeguard 

human and environmental health. For this reason, the regulations and the enforcement must 

come from the federal level. 

The current patchwork of state regulations are weak. Many states fail to require even basic 

safeguards such as adequate monitoring. State-based regulations and enforcement are also 

inappropriate because unless rules are changed, coal ash and coal ash polluted groundwater don't 

actually respect state boundaries. 

I want the environment in which I and my neighbors live to be cleaner and healthier. I want the 

environment that children inherit to be cleaner still. The EPA is the right agency to take the lead 

and I hope it will adopt provisions at least as strong and binding as those in Subtitle D with 

regard to coal ash. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-CHI-0064-3

Organization1:Peoria Families Against Toxic Waste

Commenter1:Tracy Fox

Commenter Type: Advocacy Group
803

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.4

Comment Excerpt Text:

The second reason why I think C is so important is because it includes enforceable corrective 

action, and I think that's a key difference. As someone who has looked at the numerous reports 

showing water quality violations, well incursions and other monitoring problems, and to realize 

that Subtitle D includes no enforceable corrective action, all the self-imposed monitoring and 

reporting in the world is worthless without that.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-CHI-0078-1

Organization1:Michigan Citizen Action

Commenter1:Adam Knott

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

We strongly support Subtitle C because of the state and federal enforcement that would be part 

of the rule, because private citizens cannot bring a suit on their own, through their own 

resources. The industry has the unlimited checkbook and can outlast any citizen group. Plus, 

there is no guarantee that the state, even though it can be acting as a citizen, will necessarily

bring corrective action or bring enforcement to the industry. 

And also, we support the state and the federal government's corrective actions under the Subtitle 

because the industry, as much as they have the good intentions of fixing their mistakes and self 

regulating, don't always do that. I can tell you as someone who lives 30 minutes from Marshall, 

Michigan where 800,000 gallons of oil were leaked into the Kalamazoo River where I get my 

water from, that company had 350 areas of concern and did not address them at all. So, we 

strongly need both the state and the federal government in there to enforce any corrective action 

that is needed. 

And lastly, Subtitle C will create uniformity throughout the country, from cradle to grave of coal 

ash and its regulation. And if everyone knows the rules, everyone can act accordingly and, you 

know, those that use, whether it's cement makers or the coal industry, if they know what the rules 

are, they can act accordingly and offer the best service and the best product and the landfills will 

not dry up overnight. Every time a rule such as this is proposed, they always say that they'll go 

out of business. Well, we hear that from the regulation of industries that have abused their 

positions regularly. If it's not the coal industry, it's the insurance industry, and not one of them 

has gone out of business yet. So, we strongly support Subtitle C.
804

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-CHI-0110-1

Organization1:

Commenter1:Susan Michetti

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

Coal ash needs classification as a listed toxic substance to be regulated under RCRA Subtitle C 

with a comprehensive program with federally enforceable requirements as a minimum, not 

through citizen suits that require deep pockets and will bring bankruptcy to those citizens.

The coal industry outrageously brags they meet the standards while contaminating the drinking 

water in Wisconsin, so Caledonia has to have bottled water. Since voluntary industry selfregulation is beyond failed, industry corporations must be held financially accountable for all 

external cost including testing and cleanup, not paid by individual victims of these unfair, 

unethical externalities of their costs of doing business. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-CLT-0004-1

Organization1:Sierra Club Beyond Coal Campaign

Commenter1:Marianne Hitt

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

The first point: coal ash should be classified under Subtitle C of RCRA, not D, because one, it is 

indeed toxic. Why else would TVA be spending $1 billion in buying up all the land around the 

Kingston spill if it was not? We know it causes developmental problems in children, and cancer 

and other ailments caused by all those heavy metals. 
805

And secondly, the key here is that Subtitle C is federally enforceable and Subtitle D is not. 

Subtitle D is only enforceable by states and citizen suits. And we know that state enforcement 

has been spotty at best. That's what got us into this situation in the first place. And I think we can 

all agree that it's unfair and I would say unreasonable to expect citizens to bear the burden of 

enforcing rules when the polluters they are encountering are well-resourced, well-financed, and 

these are complex, lengthy, technical, legal proceedings. 

So putting the burden of enforcement on states and on citizens is not getting the job done when 

you've got hundreds of these sites all across the country. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-CLT-0031-2

Organization1:Sphere One, Inc.

Commenter1:Ryan Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

We in the recycling CCP industry support strong relation (sic) of CCRs under Subtitle D with 

Federal enforcement authority. The EPA can't be afraid to lead. With our economy sputtering, 

you would think the EPA could work with Congress, get direct enforcement authority, and 

proceed to regulate CCRs under Subtitle D without creating this damaging stigma for CCPs. 

If there is even some question about how Subtitle C classification will be detrimental to business, 

why do it, especially when there is a technically sufficient solution that carries virtually no risk 

to the beneficial use of CCPs? A Subtitle D classification allows the EPA to live up to its 

responsibilities to protect the environment as well as its responsibility to all the hard working 

Americans whose livelihood depends on the reuse of CCPs. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 
806

Comment Number: TRANS-CLT-0084-1

Organization1:North Carolina House

Commenter1:Tracy Harrison

Commenter Type: State Elected Official

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

I'm a member of the North Carolina House, serving in my third term representing Greensboro. 

And I'm not going to repeat all that you all have heard about the environmental issues associated 

and public health issues associated with coal ash but I would like to talk about my extraordinary 

frustration with getting regulation done at the state level here in North Carolina, and why we 

need Federal leadership on this. 

It was pretty troubling for me to find out how ubiquitous coal ash is used in North Carolina, in 

structural fill on construction sites, on the roads to melt snow and ice and it goes virtually 

unregulated, unmonitored, unenforced, unreported. So I have been working for three years to 

introduce legislation at the state level to bring in some new practices and provide better 

oversight, and I feel stymied in efforts by the coal ash producers who would prefer Federal 

regulation -- at the federal level, but I believe -- Subtitle D, is treating it as regular household 

waste, and I contend to you all that it's much too toxic to be used, to be regulated as regular 

household waste. 

And it's pretty clear that the states, when I was looking for legislation, model legislation, around 

the country to model a North Carolina bill, I couldn't find one. So it's my feeling that there's not 

adequate regulation of coal ash anywhere in any state. So we really need federal regulation and 

we need federal regulation under Subtitle C.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-CLT-0139-1

Organization1:Concerned Citizens of Giles County, Virginia

Commenter1:Darlene Cunningham

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1
807

Comment Excerpt Text:

I live in Giles County, a Southwestern county in Virginia where a division of American Electric 

Power and a 501(c)(3) public school foundation have teamed to construct an unlined fly ash 

dump right on the edge of the New River. Citizens of my county have been denied a right to a 

public hearing to oppose this. Actually, my state DEQ allows such action calling it "beneficial

use." That's right. Pouring tons of toxic ash in an unlined site right by the river and calling it 

"fill" is okay in my state. Such is the regulation in Virginia. 

The notion that states and utilities are effectively regulating coal waste is grossly erroneous and 

is being circulated by those who stand to profit if the status quo is maintained as described in 

Subtitle D. These hearings would not be necessary if states and industry were generally 

concerned about protection of our water and if they were disposing of their waste responsibly. 

The fact is there must be effective, enforceable Federal regulation for coal waste if public health 

is to be valued over corporate profits. Subtitle C is the only rational choice.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-DAL-0027-1

Organization1:Ozark Headwaters Group of Sierra Club and Arkansans Against Ash Dumping

Commenter1:David Orr

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

I'm the chair of the Ozark Headwaters Group of Sierra Club in Arkansas. And I am also founder 

of Arkansans Against Ash Dumping. We appreciate the opportunity today to support the 

proposed Subtitle C rule that would regulate coal fly ash as a hazardous waste material. In our 

state, the -- the regulatory framework is considered by many to be one of the weakest in the 

United States. Our Department of Environmental Quality has little authority to take enforcement 

actions of any significance under the Clean Water Act and other -- and other environmental laws. 

We need help from EPA and from the federal government generally to put additional pressure on 

our state and on the Arkansas Department of Environmental Quality to take its responsibilities 

under federal environmental law more seriously or else take enforcement over from ADEQ and 

the other agencies that are failing in their responsibilities. 

And while we have concerns with failure to enforce existing laws, we are here today to bring to 

your attention a growing threat to groundwater and aquifers in our state, and to our streams and 

soils, as well. The unregulated dumping of coal ash is polluting our state, especially now in areas 
808

where drilling for natural gas is occurring. We have the Fayetteville shale formation where 

hydraulic fracking techniques are used that cause extensive damage to aquifers, streams, and 

soils. 

This fracking technology uses massive amounts of clean water from groundwater supplies and 

surface water supplies in fracturing underground gas-bearing rock. Water is mixed with toxic 

drill muds, organic chemicals including benzene and toluene and other heavy metals. These 

pollutants are either left in place or pumped out of the drill holes and dumped in open pits or 

pumped down other holes and ponds, such as is done in Bokoshe, Oklahoma, just across our 

western border near Fort Smith. 

We are now informed that fly ash is being pumped into abandoned drill holes where it may be 

leaching into adjacent groundwater supplies. Because there is no regulation of ash today, we 

have no idea how much ash is being dumped into wells, nor do we know how much leachate has 

migrated or will migrate into aquifers. We have learned that Oklahoma ash is being hauled into 

Arkansas for dumping and vice versa. Clearly, there is now an interstate commerce in fly ash. 

We must have federal intervention and regulation to control the proliferation of these shipments.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-DAL-0063-1

Organization1:

Commenter1:Jody Harlan

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

I would like for the EPA to recognize the public health and environmental hazards caused by 

coal ash and the impact on the communities in Oklahoma. And ask you to regulate it under 

federal guidelines Subtitle C of the RCRA. This is the only option that establishes federally 

enforceable standards needed for oversight and protection of the citizens and -- and the water. 

In Oklahoma, state regulation and enforcement are notoriously weak or nonexistent. The 

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

Department of Mines each insist that the other is responsible for regulation. And to regulate 

under Subtitle C would be following EPA's own guidelines.
809

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-DEN-0003-2

Organization1:Citizens for Recycling First

Commenter1:John Ward

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

It is a fact that coal ash does not qualify as hazardous waste based on its toxicity, which is similar 

to the toxicity of other building materials that it replaces when it's recycled. 

It is also a fact the landfill engineering standards EPA is proposing are essentially the same under 

both the Subtitle C hazardous and Subtitle D nonhazardous regulatory options. 

Designating coal ash as hazardous when destined for disposal does not result in a greater level of 

protection for the environment. It does give the federal EPA a clearer path to enforcing its new 

engineering standards rather than delegating enforcement of EPA standards to the states. But 

getting that enforcement authority comes at a terrible price, the possible destruction of a 

recycling industry that greatly benefits our environment. 

Common sense says that risking an entire recycling industry over a regulatory turf battle is a bad 

idea, and common sense says that new coal ash disposal regulations should be enacted under 

Subtitle D, and EPA should work to promote safe and environmentally beneficial recycling as a 

preferred alternative to disposal. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-DEN-0061-3

Organization1:Rocker Six Cattle Company

Commenter1:Clint McRae

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
810

Other Sections: 3.1.1

Comment Excerpt Text:

The State of Montana, Department of Environmental Quality, the only thing they have done is 

produced a two-page flowchart, which I will include with my comments today. 

This toxic and poison water, as I said, is a herd health issue, and the State of Montana has done 

nothing to enforce the law. Subtitle D, if chosen, will also do nothing and will continue the 

process as is. 

PP&L has done very little to stop the leak, and I think it's time that they become a good neighbor 

and work to protect us in the cow business. It's time for federal oversight. 

Please designate wet ash pond effluent what it is. It's hazardous. And at the minimum, please 

pick sub-standard -- C -- the C option

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-KNX-0002-1

Organization1:Southern Alliance for Clean Energy

Commenter1:Steven Smith

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1

Comment Excerpt Text:

I was asked to come up and speak before the Environmental Public Works Committee the first 

week of January. Talking to that committee, we -- and the chairman, Chairman Barbara Boxer, 

she basically said, "Look, Lisa Jackson is going to be up. We're going to talk to her during her 

confirmation hearing." And sure enough, two weeks later she was up there, made a commitment 

to actually do something about coal ash once and for all. And it's been long in coming, because 

we came very close to regulating coal ash back in the late 1990s. And O & B, at that time, held it 

up. O & B this time has delayed the proceedings now for over six months as they've wrangled 

with and been lobbied by those who have a financial interest and are willing to put that financial 

interest above and beyond the health and -- and safety of citizens.

So what we did was, now that the new ash rules are out, we've actually written a report where 

we've taken a look at what the state of Tennessee, which has basically been ground zero for coal 

ash. And what we did was we saw, what are they doing in the regulations. I want to submit this 

as part of the record. But the bottom line is that under Subtitle D, you defer tremendously to the 
811

states. And what we're seeing is the states aren't stepping up. 

EPA has a role, has a responsibility to be a backstop. And that's why we are strongly in support 

of Subtitle C, because we need that backstop, we need that agency to make sure that the rules are 

enforced. And if they're not enforced, then what -- what we see is we see these kind of 

devastation that we saw in Oak Ridge -- I mean, in Harriman. 

So we'll submit this as part of the record. My colleague Josh Galperin is going to get into the 

specifics on the report, but I'm here to strongly encourage that Subtitle C be the course. That is 

the only way that we can protect public health and the environment. That's the only way that we 

can assure that the kind of accidents that happened in Harriman will not happen again. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-KNX-0042-3

Organization1:

Commenter1:William Wilson

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The state of Tennessee has no effective regulations in place to protect our communities from the 

danger of coal ash. And the evidence is seen in the Kingston coal ash disaster. It's documented 

that Tennessee has no laws designed specifically to address the dangers of coal ash. Because of 

this lack of state regulation, obviously, Subtitle D is not acceptable. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-KNX-0068-1

Organization1:

Commenter1:Linda Smithyman

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
812

Other Sections: 3.1.1

Comment Excerpt Text:

Several Kentucky utilities, LG&E's ponds, fall into this category. I used to live in Kentucky for a 

little while. These ash-disposal sites also leak their toxic cargo into ground water or discharge it 

directly into rivers, creeks, and lakes as runoff or through permitted outfalls. Until the EPA takes 

action, there are no federal rules setting standards for the safe disposal of ash or limiting the 

discharge of toxic ash, leachate, into our waterways. We need comprehensive federallyenforceable safeguards to protect human health, wildlife, and the environment. 

Coal ash must be regulated under Subtitle C of the Resource Conservation and Recovery Act as 

special waste with all the safeguards that apply. Coal ash should not be regulated under the much 

weaker --

MR. SOUDERS: Sorry. 

MS. SMITHYMAN: Okay. 

MS. DEVLIN: Okay. Thank you very much. 

MS. SMITHYMAN: -- and less protective standards provided by a Subtitle D designation, as 

nonhazardous waste. 

Regulating coal ash under Subtitle D or RCRA is a busted and broken approach that essentially 

keeps the status quo of voluntary and patchwork protections. Subtitle D guidelines cannot 

guarantee all citizens adequate protections from toxic ash because Subtitle D does not require 

states to adopt federal guidelines. 

There are currently no federally-enforceable regulations specific to coal ash, and contamination 

from coal ash landfills and wasteponds is already poisoning drinking water supplies and 

damaging wildlife. such as fish and birds, at locations across the country. The last of federallyenforceable safeguards is exactly what led to the disaster in Tennessee, which a dam holding 

more than 1 billion gallons of toxic coal ash failed, destroying 300 acres, dozens of homes, killed 

fish and other wildlife, and poisoned the Emory and Clinch Rivers. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-KNX-0112-2

Organization1:University of Tennessee

Commenter1:Gregory Button

Commenter Type: Academia

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 7.1

Comment Excerpt Text:

Unless the EPA adopts the above-mentioned option, our nation's citizens and our environment 

will continue to remain vulnerable to the toxicity of coal ash. The TVA ash spill has dramatically 

and tragically demonstrated the failures of relying on a patchwork of state regulation. 

It is imperative that the EPA have direct oversight over the generation of storage, transportation, 

and the disposal of coal ash in order to safeguard the public and the environment. Subtitle D 
813

would continue to rely on a state-by-state patchwork of regulations, which time and time again 

has proven to be inadequate. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-LVL-0088-1

Organization1:League of Women Voters

Commenter1:Joan Lindop

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Much of Kentucky is dotted with limestone caves, which means that ground water travels miles 

very quickly. It's very hard to know where that ground water will end up once it -- contaminated 

water is there. We know it will go into the Ohio River. The League of Women Voters urges EPA 

to take charge. Already, several organizations in Kentucky have requested that the US EPA take 

back primacy from the Kentucky Division of Water. The failure of the Kentucky Division of 

Water to enforce water quality standards in our waterways has resulted in many miles of polluted 

streams, streams that are not fishable or swimmable, as Kentucky Department of Water was 

required to report in the latest Kentucky Division of Water Integrated Report. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-LVL-0094-2

Organization1:Environmental Integrity Project

Commenter1:Sam Flenner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Voluntary Subtitle D means residents near coal ash disposal sites will have no guarantee that 

they will even have access to coal ash toxicity information that can prevent contamination, 

illness, birth defects, to go along with the fact that they don't even have reliable, accurate tests 

being conducted right now. 

Numerous letters have been sent to the EPA by state agencies, legislators, and so forth. Indiana 
814

Department of Environmental Management says none of their many years of -- of -- of -- years 

to date has indicated that the characteristics of CCBs approaches the limits for toxicity in the 

federal regulations to identify havard -- hazardous waste. Of course not. The test is inaccurate. 

The DNR says that -- and I -- I quote -- "Indiana statute provides for the use of CCBs in 

beneficial-use applications in the state of Indiana so long as the material is used for specific 

purposes and is not hazardous waste." Well, in reality, if you take a look at Indiana statute, the 

Indiana Solid Waste Management Board is prohibited from even regulating coal ash. 

And so we need Subtitle D. Subtitle -- or Subtitle C. Excuse me. We need Subtitle C because 

after three years of self-policing under Subtitle D, state regulators and the utilities have proven 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-PIT-0074-2

Organization1:Clean Water Action

Commenter1:Tom Hoffman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1 7.1

Comment Excerpt Text:

It is our understanding that the EPA has two proposed regulatory options for coal ash - Plan C 

and Plan D. Clean Water Action is supporting the Strong Option, Plan C, that would provide 

basic environmental and public health safeguards backed up with federal enforcement and 

financial accountability. We need protection from coal ash cradle to grave and the Subtitle C 

option gives us that. We do not support the status quo option that relies on citizen suits or 

possible state regulations for enforcement. 

Pennsylvania is a resource rich state, but our residents have and will continue to pay a high price 

for that. Streams that are no longer life sustaining. Air that sends kids to the hospital with asthma 

at four times the national rate. Flammable drinking water in peoples' homes. Leaving things to 

the state is not an option here in Pennsylvania. We are facing severe budgetary shortfalls and our 

DEP has been slashed to the bone. Our communities are facing serious environmental threats 

from the booming natural gas drilling industry. Our Department of Environmental Protection 

does not have the necessary resources to protect us from those dangers let alone do what is 

necessary to regulate coal ash. Clean Water Action supports strong federal regulations on coal 

ash. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
815

Section 4.2.5 - Potential use under Subtitle D approach of “imminent and substantial 

endangerment” authorities under RCRA, CERCLA, CWA or other federal authorities 

(35211)

Total Number of Submissions: 27

Total Number of Comments: 29

Comment Number: EPA-HQ-RCRA-2009-0640-02867-2

Organization1:

Commenter1: Brett Barkley

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In considering the quality of groundwater and surface water in relation to RCRA, the EPA 

should be careful that they don’t create overlapping and potentially confusing regulation. The 

Safe Drinking Water Act (SDWA) and Clean Water Act (CWA), respectively, are supposed to 

ensure the quality of our nation’s drinking and surface water. If there indeed have been damage 

cases from the contamination of water sources, it would seem at least in part to be the result of 

government failure to enforce existing regulations. Since such rules are already in place, to 

regulate CCRs under subtitle D or subtitle C of RCRA to ensure clean water could be redundant. 

Moreover, if relevant parties are not complying with the current regulations, SDWA and CWA, 

why will they comply with new ones? Instead of complying, industry users will likely become 

more confused with the increasingly complex web of regulation and attempt to avoid products or 

constituents that are subject to it even if those products or constituents would otherwise be

preferable.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06295-6

Organization1:Portland General Electric Company (PGE)

Commenter1:James J. Piro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Concerns raised about the lack of direct federal enforcement authority fail to recognize the 

significant enforcement opportunities available under existing law. EPA acknowledges that the 

final Subtitle D rules for CCRs would be directly enforceable by the states and the public under
816

RCRA's citizen suit provision and violators would be subject to significant penalties. [FN 7: 75 

Federal Register 35128 at 35211.] EPA would also retain its "imminent and substantial 

endangerment authority" under RCRA to take action against any CCR unit that posed a risk to 

human health and the environment. Finally, EPA could use its imminent and substantial 

endangerment authorities under CERCLA, as well as other federal authorities, including the 

Clean Water Act, to address circumstances where a CCR unit posed a threat.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06422-28

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Under RCRA § 7003, EPA also can directly enforce Subtitle D requirements whenever a CCR 

facility may present an imminent and substantial endangerment to health or the environment. 

Finally, EPA has additional independent enforcement authority under the federal Clean Water 

Act and CERCLA, as does the Office of Surface Mining under the federal Surface Mining 

Reclamation and Enforcement Act, to address CCR facilities that may threaten health or the 

environment.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06533-3

Organization1:Empire District Electric Company

Commenter1: George G. Thullesen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Any federal regulations should establish minimum requirements to be applied to facilities in 

states where no approvable state regulatory program exists. In contrast, states should be 
817

permitted to demonstrate that their regulatory programs are adequately protective. We remind 

EPA that they already have RCRA 7003 enforcement authority to address potential threats or 

endangerment to human health and the environment for the release of solid waste.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06723-9

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

Furthermore, as referenced in Sections X.B and XII of the proposed regulations, the EPA already 

has broad RCRA 7003 enforcement authority to address Potential Substantial Threats or 

Endangerments to Human Health and the Environment as well as imminent hazards for releases 

of solid waste, and therefore, does not need the additional authority afforded by Subtitle C.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06857-33

Organization1:CertainTeed Gypsum, Inc.

Commenter1: Lauren P. Alterman

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Insofar as EPA is worried about establishing appropriate standards to forestall future 

impoundment problems, the Agency can do so as proposed in Option 2. While EPA may be 

unable to pursue noncompliance with these standards as a federal regulatory violation, it surely 

can use its imminent and endangerment authority to address any resulting risk. In fact, in its CCR 

Regulatory Determination in 2000, EPA announced its intention to issue minimum national 

performance standards. Perhaps if EPA had acted on its promise and previously availed itself of 
818

the authority it does possess to establish national standards, the Agency would now not find a 

need to address landfill problems.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06872-21

Organization1:State of Pennsylvania Department of Environmental Protection

Commenter1: Todd M. Wallace

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3 4.2.2

Comment Excerpt Text:

According to EPA, the design and performance standards for the proposed regulations will likely 

be the same regardless of what regulatory scheme is selected. The major difference in the 

approaches is that EPA asserts that a Subtitle C designation is necessary for it to retain and 

exercise appropriate enforcement authority and EPA cannot require States to permit landfills 

under Subtitle D. The PA DEP recognizes that regulatory oversight is important to ensure that 

CCR is managed appropriately; however, PA's Solid Waste Management Act already authorizes 

state enforcement authority, and PA DEP exercises that authority. Subtitle D requires state 

programs to have the necessary enforcement authority as part of the federal approval process. 

This approach has been successful for PA, as evidenced by the 96% compliance rate for CCR 

facilities. In addition, EPA already has broad RCRA 7003 enforcement authority to address 

"Potential Substantial Threats or Endangerments to Human Health and the Environment" as well 

as imminent hazards for releases of solid waste and, therefore, it does not require the additional 

authority under Subtitle C.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06921-29

Organization1:Associated General Contractors of America (AGC)

Commenter1: Melinda L. Tomaino

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
819

Comment Excerpt Text:

In addition, EPA has options for enforcement even if the waste is determined non-hazardous and 

regulated under subtitle D. “EPA can however take action under section 7003 of RCRA to abate 

conditions that ‘may present an imminent and substantial endangerment to health or the 

environment.’ EPA could also use the imminent and substantial endangerment authorities under 

CERCLA, or under other federal authorities, such as the Clean Water Act, to address those 

circumstances where a unit may pose a threat.” (75 FR 35211)

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07048-3

Organization1:TransAlta Centralia Generation

Commenter1: Lou Florence

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

One of EPA's major concerns with the Subtitle D option is that it lacks authority to require state 

permits, approve state programs and to directly enforce the criteria (75 Fed. Reg. at 35194). 

However, RCRA § 7003 grants EPA ample direct enforcement authority to address health or 

environmental risk from CCRs at power plants, landfills and surface impoundments. Although

EPA has not used this authority extensively since the adoption of Section 106 of CERCLA, 

Section 7003 authorizes EPA to issue unilateral orders, file lawsuits for injunctive relief, and 

enter into administrative orders on consent to respond to "imminent and substantial 

endangerment" to health or the environment resulting from solid wastes. See EPA, "Guidance on 

the Use of Section 7003 of RCRA" (Oct. 1997). Also, EPA has authority to impose civil 

penalties for violations of Section 7003 orders. 

Section 7003 has been broadly interpreted to apply to threatened or potential harm to health or 

the environment. See. e.g., United States v. Valentine, 856 F. Supp. 621,626 (D. Wyo. 1994). No 

present or actual harm is required, only a risk of harm. No release or proof of off-site migration 

is required ; even wastes in place are subject to Section 7003 authority if they present an 

imminent and substantial endangerment. ld. Finally, "imminent" does not require an emergency, 

Section 7003 allows enforcement action even for future risks. ld. 

Section 7003 provides EPA with the type of enforcement authority consistent with its actual 

enforcement practices under other environmental programs in which it has direct enforcement 

authority. Under other programs, such as Clean Water Act and Clean Air Act, EPA's policy and 

practice is to intervene directly by bringing an enforcement action only in cases involving 

significant violations in which a state has failed to take action. To the extent that states are 
820

unwilling to adopt and enforce EPA's Subtitle D standards for CCRs, the EPA may use its 

Section 7003 authority for enforcement of Subtitle D requirements in a manner similar to its 

oversight enforcement of other state environmental programs.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07489-5

Organization1:Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4

Comment Excerpt Text:

EPA mischaracterizes the differences between the Subtitle C and D programs, contending 

without support that the Subtitle D program lacks enforceability. 

EPA is pursuing a Subtitle C regulation based on a misperception that EPA needs enhanced 

enforcement options because the states lack such authority. At the same time, EPA and other 

federal agencies, continue to delegate programs and enforcement to the states; and as discussed 

previously, with some additional support from EPA, states can develop and implement wellfunctioning enforcement programs.

Even under a state run Subtitle D program, EPA has enforcement authorities that allow it to 

enforce Subtitle D requirements. If a site does not comply with Subtitle D Standards, the site 

could be classified as an “open dump” and subject to enforcement action, even by EPA. Even for 

authorized state programs, EPA always retains the ability to enforce to prevent an “imminent and 

substantial endangerment” of public health or the environment. [Footnote 6: 75 FR 35211]

States can perform effectively; the present state of CCB regulation is not an example of a failed 

Subtitle D program, rather it is a Subtitle D program never launched. 

Subtitle D is a highly effective regulatory mechanism, as evidenced by states' implementation of 

the Subtitle D program for managing solid waste. In the case of CCBs, states have been required 

to develop their own programs for managing CCBs. In some states, these programs are limited 

by state laws that limit the state’s development and implementation of a program where EPA has 

not developed a regulatory approach. The real failure for enforcement lies with EPA. Had EPA 

promulgated regulations under Subtitle D and had the states not implemented the regulations, 

then perhaps a case of state regulatory failure could be made. Here, however, in the absence of 

EPA involvement, the states have developed regulations for the management of CCBs from all 

combustion sources
821

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-08211-21

Organization1:North Dakota Department of Health

Commenter1: L. David Glatt

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3 4.2.1

Comment Excerpt Text:

The NDDoH believes that the whole crux of the selection of the Subtitle C or D options comes 

down to enforcement. Will direct enforcement authority by EPA be absolutely necessary, or will 

enforcement by states and citizens be adequately protective? The majority of states have 

applicable solid waste regulations that can be enforced by the state. 

In the states that do not have regulations regarding CCRs, the imminent hazard enforcement 

authority currently included in RCRA provides EPA with a mechanism for enforcement short of 

creating a new set of regulations for CCRs under Subtitle C. An EPA enforcement training 

document, found online at www.epa. gov/osw/inforesources/pubs/hotline/training/enforc.pdf, 

states the following: 

"Section 7003 gives EPA a broad and powerful enforcement tool to use in abating imminent 

hazards caused by hazardous or solid wastes. RCRA §7003 states that upon receipt of evidence 

that the past or present handling, storage, treatment, transportation, or disposal of any solid waste 

or hazardous waste may present imminent and substantial endangerment to human health or the 

environment, EPA may bring suit against any person who has contributed or who is contributing 

to the handling of the waste to restrain the person, order the person to take any action that may be 

necessary, or both. The action taken by EPA may be administrative or civil. To issue a §7003 

order, EPA must possess evidence that the waste handling may present an imminent and 

substantial endangerment to human health or the environment. Evidence may be documentary, 

testimonial, or physical and may be obtained from a variety of sources, including inspections, 

investigations, or requests for production of documents or other data pursuant to §§3007, 3013, 

or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 

§104. This evidence must be reliable enough to enable a reasonable person to conclude that the 

action is appropriate. The phrase "may present" indicates that the standard of proof does not 

require certainty. That is, an order may be issued if there is sound reason to believe that an 

endangerment exists; evidence of actual harm is not required." 
822

Therefore, by EPA's own assessment and interpretation of current RCRA rules, it is not 

necessary to implement the Subtitle C option for EPA to have direct enforcement authority for 

CCR damage cases.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-31

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

G. EPA's Existing Enforcement Authority Under RCRA § 7003 And CERCLA § 104 Already 

Gives It The Authority It Needs To Take Action To Remedy Each Of The Damage Cases (And 

Potential Damage Cases) Cited By EPA As A Justification For Its Subtitle C Proposal

One of EPA's main justifications for moving forward with a Subtitle C approach is that it lacks 

the tools necessary to address and/or mitigate the risks posed by CCRs and existing CCR 

management systems. [Footnote 286: 75 Fed. Reg. at 35,221.] In support of this claim EPA 

points to several "damage cases." However, EPA acknowledges that its existing authority under 

RCRA § 7003 already gives it the authority it needs to address any risks to human health and the 

environment associated with the disposal of CCRS. [Footnote 287: 58 Fed. Reg. at 42,476 

("Considering industry's trend toward more protective waste management practices, the fact that 

State regulatory programs are generally adequate, and because Federal authorities exist that can 

address these wastes, EPA has concluded that current management practices and regulatory 

controls are adequate.").]

RCRA § 7003 permits EPA, ''upon receipt of evidence that the past or present handling, storage, 

treatment, transportation or disposal of any solid waste or hazardous waste may present an 

imminent and substantial endangerment to health or the environment," to take such actions, 

including judicial actions, "as may be necessary to protect public health and the environment.” 

[Footnote 288: 42 U.S.C. § 6973.] Section 7003 permits EPA to seek relief from the courts, to 

issue administrative orders, and to impose controls on future operations at any facility or site, 

regardless of whether the facility or site is one permitted under RCRA. [Footnote 289: U.S. EPA 

Office of Enforcement and Compliance Assurance, Guidance on the Use of Section 7003 of 

RCRA, at 21 (October 1997).] EPA concedes in the Proposed Rule that this authority exists, 

observing that § 7003 “can be used at sites and facilities that are not subject to Subtitle C of 

RCRA or any other environmental regulation.” [Footnote 290: Id. at 2.] In fact, EPA guidance 

directs its regional administrators to utilize the Agency’s RCRA § 7003 authority to act where 
823

existing solid or hazardous waste authorities prove inadequate or inapplicable—for instance, 

because they do not allow EPA to address a material present at a site or facility—or where they 

cannot be used to address a potential endangerment in a timely manner. [Footnote 291: Id. at 4.] 

This guidance evidences a recognition by EPA of its broad authority under RCRA § 7003 to 

address circumstances not expressly covered by existing regulations.

Courts have affirmed the breadth of EPA’s authority by reading the “notwithstanding any other 

provision of this chapter” language of RCRA § 7003 to indicate Congress’ intent to create a 

“broadly applicable section dealing with the concerns addressed by the statute as a whole.” 

[Footnote 292: United States v. Waste Industries, Inc., 734 F.2d 159, 164 (4th Cir. 1984).] These 

courts (and EPA itself) have taken this judicial interpretation to mean that RCRA § 7003 can be 

used “to address potential endangerments that may be presented by solid or hazardous wastes 

even if the persons or activities causing the potential endangerment are not subject to any other 

provision of RCRA or other environmental law.” [Footnote 293: Id.; see also U.S. EPA, 

Guidance on the Use of Section 7003 of RCRA at 3.] This interpretation illustrates the point that

RCRA § 7003 is a powerful regulatory tool available to EPA to mitigate the risks posed by CCR 

management systems, such as a structurally unsound surface impoundment.

Moreover, contrary to EPA’s claim, its authority under RCRA § 7003 to address “an imminent 

and substantial endangerment to human health or the environment” is not limited in scope. 

Courts have found the “imminent and substantial” standard met relatively early in the risk 

characterization process. For example, a risk need not be quantified to be “substantial,” and a 

threat of damage to the environment alone will suffice to trigger RCRA § 7003. [Footnote 294: 

United States v. Conservation Chemical Co., 619 F. Supp. 162, 194 (W.D. Mo. 1985).] In one 

instance, a federal district court in Florida found the imminent and substantial endangerment 

standard “unquestionably” met when groundwater contamination was discovered beneath a 

shopping center that housed a dry-cleaning facility, even though no contamination was detected 

in the nearest potable water supply approximately one mile away. [Footnote 295: Fairway 

Shoppes Joint Venture v. Dryclean U.S.A. of Florida, No. 95-8521-CIV-HURLEY, 1996 WL 

924705 (S.D. Fla. March 7, 1996).] Even though there was no evidence that any chemical had 

moved beyond the property boundaries of the shopping center, the court found the threat of its 

“migration” sufficient to trigger enforcement authority. [Footnote 296: Id. at *8 (“The Court 

need not—and should not—wait until the contaminated water is actually detected in public water 

supply well before taking action.”).] The district court also pointed out that the environmental 

contamination beneath the shopping center was sufficient on its own for a finding of imminent 

and substantial endangerment. [Footnote 297: Id.] As a result, the court affirmed EPA’s exercise 

of its authority under RCRA § 7003 to order the drycleaner to develop a remediation plan to 

address the contamination and to submit it to the court within a set period of time. [Footnote 298: 

Id.]

Similarly, the Second Circuit affirmed the judgment of the United States District Court for the 

District of Vermont that a defendant operated a landfill in violation of RCRA where, even after 

installing a leachate collection system, at least ten percent of the chemical wastes from the 

landfill were migrating into the surface and groundwater around the site. [Footnote 299: Dague 

v. City of Burlington, 935 F.2d 1343, 1356 (2d Cir. 1991).] The court based its judgment on its 

belief that the landfill presented an imminent and substantial endangerment to health and the 

environment. These precedents demonstrate that EPA already has the authority under RCRA § 

7003 to mitigate the risks associated with each of the damage cases cited in the Proposed Rule. 
824

For example, EPA’s detection of groundwater contamination within the vicinity of the 

Battlefield Golf Course would have permitted it to take action under RCRA § 7003, even though 

the contamination observed had not yet found its way to potable groundwater supplies. 

EPA’s response to these arguments, as outlined in the Proposed Rule, is that using RCRA § 7003 

to address threats at specific facilities on a case-by-case basis is not consistent with RCRA’s 

purpose. [Footnote 300: 75 Fed. Reg. at 35,221.] EPA argues that RCRA was designed as a 

proactive and prophylactic statute rather than a reactive one, and that relying solely on RCRA § 

7003 to mitigate the risks associated with the disposal of CCRs would be inconsistent with 

congressional intent. [Footnote 301: Id.] EPA also suggests that such a strategy would implement 

the status quo, which it considers unacceptable, and require too great an investment of resources 

by the Agency to be practicable. [Footnote 302: Id. Specifically, EPA contends that requiring the 

Agency to make a showing of imminent and substantial endangerment—as required by RCRA 

section 7003—each time it exercises its enforcement authority would be too labor intensive.]

EPA overstates the difficulty it would face in addressing threats to human health or the 

environment under RCRA § 7003, as well as the extent to which such a strategy would be 

reactionary. To exercise its authority under RCRA § 7003, EPA must simply demonstrate the 

existence of conditions that may present an imminent and substantial endangerment to health or 

the environment. The elements of a prima facie case of liability under RCRA §7003 are: (1) 

conditions which present or may present an imminent and substantial endangerment; (2) that the 

endangerment stems from the handling, storage, treatment, transportation, or disposal of a solid 

or hazardous waste; and (3) that defendants have contributed to or are contributing to such 

handling, storage, treatment, transportation, or disposal. [Footnote 303: United States v. Bliss, F. 

Supp. 1298, 1313 (E.D. Mo. 1987).] Courts have routinely held that the endangerment standard 

of RCRA §7003 is broad, [Footnote 304: See, e.g., United States v. Valentine, 856 F. Supp. 621, 

626 (“Section 7003 should be construed in a liberal, rather than a restrictive, manner”).] 

requiring neither certainty nor proof of actual harm to proceed under the section. [Footnote 305: 

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir. 1991).] Instead, courts have required only 

evidence of a risk of harm. Similarly, neither a release of a hazardous substance nor a threatened 

release is required, enabling EPA to act even when a threat to human health or the environment 

remains less immediate. [Footnote 306: United States v. Aceto Agricultural Chemicals Corp., 

872 F.2d 1373, 1382 (8th Cir. 1989).] EPA insincerely overstates the evidentiary burdens it 

would face in addressing risks under RCRA § 7003, since it has previously stated that “[f]ederal 

authorities exist to address site-specific problems posing threats to human health and the 

environment under RCRA Section 7003.” [Footnote 307: 58 Fed. Reg. 42,446, 42,476 (Aug. 9, 

1993).] EPA also fails to acknowledge how prophylactic RCRA § 7003 can be. While RCRA § 

7003 may be more site-specific than the broad, sweeping regulations EPA desires under RCRA 

Subtitle C or Subtitle D, the fact remains that it is a forward-looking provision that permits the 

Agency to anticipate and address risks to human health and the environment well before they rise 

to the level of actual negative impacts. In fact, RCRA § 7003 is precisely the appropriate 

authority for EPA to invoke to address the site-specific concerns that are motivating the 

Proposed Rule.

The legislative history confirms Congress’ view that RCRA § 7003 is “a prospective act 

designed to prevent improper disposal of hazardous wastes in the future,” [Footnote 308: United 

States v. Waste Industries, Inc., 734 F.2d 159, 166 (4th Cir. 1984) (quoting H.R. Committee 

Print No. 96-IFC 31, 96th Cong., 1st Sess. at 32 (1979) (“the Eckhardt Report”) (emphasis 

added).] which is why Congress did not limit the statute to emergency-type situations, and courts 
825

have made it clear that “a finding of ‘imminency’ does not require a showing that actual harm 

will occur immediately so long as the risk of threatened harm is present.” [Footnote 309: 

Environmental Defense Fund v. Environmental Protection Agency, 465 F.2d 528, 535 (D.C. Cir. 

1972).] In other words, imminence refers more to the nature of the threat rather than to its 

timeline for creating specific impacts. The threat EPA fears most is that conditions at a particular 

disposal facility will lead to another catastrophic failure like the one at the TVA impoundment in 

Kingston, Tennessee. As explained above, the threat posed by TVA-type failures is not driven by 

the nature of the materials stored in the impoundment but rather by unit-specific failures of the 

impoundment dams. The type of site-specific failure that occurred at the TVA impoundment is 

precisely the kind of threat RCRA § 7003 was designed to address.

Moreover, in addition to the prophylactic authorities under RCRA § 7003, EPA has additional 

authority under the Comprehensive Environmental Response, Compensation, and Liability Act 

(“CERCLA”) to remediate the contamination that does occur. Under CERCLA § 104(a)(1), EPA 

can perform or require removal or long-term remedial action. [Footnote 310: Id.] This authority 

is triggered by the actual or substantial threat of release of a pollutant or contaminant that may 

present an imminent and substantial danger. [Footnote 311: 42 U.S.C. § 9604(a)(1).] If it 

performs the removal or remedial action itself, the Agency can seek reimbursement of response 

costs under CERCLA § 107(a). [Footnote 312: Id. at § 9607(a).] In sum, the existing statutory 

tools EPA has at its disposal and the site-specific nature of the concerns motivating the Subtitle 

C proposal call into question the Agency’s motivation for seeking to regulate CCRs as “special 

wastes” under Subtitle C. Doing so will unnecessarily saddle the power generation sector and 

state regulatory bodies with regulatory burdens that are not justified by the risks identified by 

EPA and the existing authorities available under RCRA § 7003, CERCLA § 104 and RCRA 

Subtitle D. To illustrate why its existing enforcement authorities are sufficient, one need look no 

further than the Proposed Rule’s preamble, which highlights 80 surface impoundments of 

potential concern, lumping them in a broad “high failure risk” group that includes any CCR 

impoundment greater than 40 feet tall and older than 25 years of age. [Footnote 313: U.S. EPA, 

Regulatory Impact Analysis for EPA’s Proposed RCRA Regulation of Coal Combustion 

Residues (CCR) Generated by the Electric Utility Industry, at 7 n.2 (April 30, 2010).] Aside 

from the height or the age of the facility, EPA discloses no other site-specific characteristics that 

contribute to its concerns with respect to these facilities. Nor does it endeavor to put this number 

in perspective, where EPA identified a universe of 495 operating electric utility plants, 467 of 

which disposed of (rather than beneficially used) CCR either onsite or offsite in 2007. [Footnote 

314: Id. at 7.] It is nothing short of outrageous that EPA proposes to expose the electric utility 

industry and the states to billions of dollars in unnecessary spending so that EPA can avoid 

conducting the “facility-specific and resource-intensive” inquiry required by § 7003 at the mere 

80 surface impoundments that EPA projects may be problematic, despite its recognition that the 

§ 7003 authority is adequate to address those risks.

As such, it is arbitrary for EPA to claim that it lacks the regulatory tools its needs; EPA has the 

authority it needs without attempting to force CCRs under Subtitle C without justification. A 

more tailored approach like EPA’s RCRA Subtitle D or D* alternatives paired with its existing 

enforcement authorities would achieve a better balance, giving EPA the environmental benefits it 

seeks without imposing largely unnecessary costs on industry and enormous burdens on the 

states
826

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-39

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

D. Under The Subtitle D Approach EPA Still Retains Enforcement Authority

Under RCRA § 7003 To Address On A Case-By-Case Basis CCR Disposal Practices That 

Present Any Risk to Human Health Or The Environment As explained above, [Footnote 363: See 

Subsection III.G supra.] EPA would retain the authority under RCRA § 7003 to address 

imminent and substantial endangerment to human health or the environment related to the 

handling, storage, treatment and transportation of solid or hazardous wastes at specific sites. This 

authority is not dependent on the regulatory approach adopted by EPA. Thus, under a Subtitle D 

approach, while the authority for implementation of a CCR management program will rest 

primarily with the states, EPA will retain enforcement authority under § 7003 to address 

conditions at individual facilities where the handling, storage or disposal of CCRs pose an 

imminent and substantial risk to human health or the environment. As explained above, RCRA § 

7003 permits EPA to order the remediation of existing conditions and/or to impose controls on 

the future operations of a facility or site. Section 7003 represents a viable tool because it does not 

require a showing that actual harm will occur; it merely requires that a threat of harm exists. 

[Footnote 364: Environmental Defense Fund v. Environmental Protection Agency, 465 F.2d 528, 

535 (D.C. Cir. 972).]

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09273-7

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1: Wayne Gieselman

Commenter Type: State Government

Classification: Substantive

Comment Category:
827

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA Has Enforcement Authority Without RCRA C Designation. Regulating a solid waste as 

hazardous must be based upon a determination that the solid waste has the constituents or 

possesses the characteristics to warrant this categorization. This determination cannot be justified 

solely upon the belief that a Subtitle C designation is needed for the federal government to 

possess enforcement authority. With regard to enforcement, the Agency already has this 

authority under Section 7003 of RCRA to address situations where handling, storage, treatment, 

transportation, or disposal of any solid waste or hazardous waste may present an imminent and 

substantial endangerment to health or the environment. While this authority has been previously 

reserved for the most egregious violations, it does provide an enforcement mechanism which the 

Agency can invoke when industry or states have been unable or unwilling to address identified 

environmental impacts. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09281-14

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

3. The federal enforcement authorities available under Subtitle C do not provide the only 

mechanism for assuring effective CCR program implementation. 

Exelon shares EPA’ s concern that the lack of federal enforcement authority could compromise 

Subtitle D enforcement. However, CCR facility operators have a number of other incentives to 

comply with Subtitle D regulations, including: (i) the possibility of state and thirdparty litigation 

(for both regulatory compliance and actual damages), especially with easily accessible 

compliance information open to public scrutiny; (ii) requirements of investors, lenders and 

insurers to comply with environmental requirements; [footnote 2: Investors and lenders typically 

condition capital investments and loans on environmental compliance. Refusing to agree to such 

a conirnitment could result in lack of funding. Similarly, environmental insurance policies 

invariably exclude damage claims arising from non-compliances from covered events] and (iii) 

typical corporate policies in this frequently-regulated industry sector which call for 

environmental compliance as a standard operating procedure. 

Moreover, EPA is not without any enforcement authority related to environmental damage 
828

associated with or resulting from CCR disposal. To the contrary, EPA has authority to ameliorate 

threats of immediate and substantial endangerment to health or the environment arising from the 

disposal of CCR under RCRA. See 42 U.S.C. § 6973. While this authority does not include the 

ability to address each and every minor instance of non-compliance with the regulatory 

requirements that would be imposed under Subtitle D, it allows the Agency to address significant 

instances of non-compliance that pose imminent and substantial threats to the public or the 

environment. Thus, EPA would still have an important role within the Subtitle D framework in 

protecting the public from waste management and disposal practices that pose a significant 

demonstrated health risk. 

EPA can also invoke enforcement authority under other relevant statutory programs. EPA can 

enforce violations of the clean Water Act under 33 U.S.C. § 1319 if CCR are improperly 

discharged to surface water or otherwise discharged in violation of an NPDES permit condition. 

As impoundments are frequently located near surface waters and often discharge to them 

pursuant to a state-issued NPDES permit, the potential for the clean Water Act to serve as an 

enforcement tool is far from academic. In addition, the Office of Surface Mining Reclamation 

and Enforcement may also be able to initiate an enforcement action if a state fails to take 

appropriate action if a beneficial use application of CCR in an active or abandoned mine leads to 

a violation of the Surface Mining control and Reclamation Act. See generally 30 U.S.C. § 1271.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-49

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.3

Comment Excerpt Text:

EPA's concerns regarding their oversight ability should be addressed through the authorities of 

§7003 of RCRA or through other mechanisms including congressional action.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
829

Comment Number: EPA-HQ-RCRA-2009-0640-10495-71

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.4.1 5.6.4

Comment Excerpt Text:

VIII. [corrected from V. in second half of split submission] EPA SHOULD USE RCRA 

§7003 TO ADDRESS THE IMMINENT AND SUBSTANTIAL HAZARD POSED BY 

OLD AND INADEQUATELY DESIGNED SURFACE IMPOUNDMENTS

The nationwide inventory of currently operating surface impoundments includes a considerable 

number of decades-old impoundments that pose serious risks of collapse and groundwater 

contamination because they were not properly designed and are not properly maintained. The 

best-case scenario under EPA’s current proposal would allow these precarious impoundments to 

continue operating for seven years after promulgation. [Footnote 394: U.S. EPA, Hazardous and 

Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal 

Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35178 (Jun. 

21, 2010).]. Because even Subtitle C does not provide for rapid closure and remediation of the 

most dangerous impoundments, EPA should utilize its authority under RCRA §7003 to effect the 

closure or clean-up of the most perilous surface impoundments. [Footnote 395: 42 U.S.C § 

6973.].

Section 7003 of RCRA provides broad authority for EPA to issue administrative orders or 

commence judicial actions where handling of a solid waste creates “an imminent and substantial 

endangerment to health or the environment...” [Footnote 396: Id,.]. This clause has been broadly 

interpreted to grant enforcement authority when there is an actual, threatened or potential harm, 

[Footnote 397: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994).] when present 

conditions indicate a future risk, even if the harm may not manifest for some time, [Footnote 

398: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994).] and when there is a 

reasonable concern that health of the environment may be seriously harmed. [Footnote 399: 

United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & 

Decker, Inc., 117 F.3d 1414 (4th Cir. 1997).].

After the devastating collapse of the Kingston impoundment in 2008, and the growing evidence 

of groundwater contamination at impoundments across the country, EPA should recognize that 

unregulated impoundments pose an imminent harm to human health and the environment. 

[Footnote 400: See, e.g., Environmental Integrity Project and Earthjustice, “Out of Control: 

Mounting Damages from Coal Ash Waste Sites”, Feb. 24, 2010; Environmental Integrity Project, 

Earthjustice and Sierra Club, “In Harm’s Way: Lack Of Federal Coal Ash Regulations 

Endangers Americans And Their Environment”, Aug. 26, 2010.]. EPA should further act 

pursuant to section 7003 to safeguard communities from further groundwater contamination 

from unlined ponds and from another collapse at a poorly designed and maintained 
830

impoundment. 

A. Surface Impoundment Ratings Indicate A Probability Of “Substantial Endangerment”

To commence action under section 7003 EPA must find a substantial endangerment. Substantial 

endangerment arises when there is a reasonable cause for concern that human health or the 

environment may be seriously harmed. [Footnote 401: United States v. Conservation Chemical, 

619 F. Supp 162 (W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4th Cir. 

1997).]. EPA has compiled hazard ratings for 200 of the 629 known surface impoundments 

throughout the country. [Footnote 402: EPA, Information Request Responses from Electric 

Utilities, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.]. While these hazard 

ratings do not address potential for harm, the ratings do directly account for the substantiality of 

the harm. A high hazard rating represents a probable loss of human life should the impoundment 

fail. [Footnote 403: U.S. EPA, Hazardous and Solid Waste Management System; Identification 

and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, 

Proposed Rule, 75 Fed. Reg. 35128, 35130 (Jun. 21, 2010).]. A significant hazard rating 

represents a possibility of environmental damage. [Footnote 404: U.S. EPA, Hazardous and 

Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal 

Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35130 (Jun. 

21, 2010).]. Thus, all impoundments with high and significant hazard potential should be 

considered as posing a substantial degree of endangerment for purposes of action under §7003.

Of the 200 reporting impoundments, 121 rate as high or significant hazards. [Footnote 405: EPA, 

Information Request Responses from Electric Utilities, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.]. EPA should begin 

with these 121 impoundments, review the imminence of the hazards posed and where the hazard 

is, in fact, imminent, EPA should utilize setion 7003 to remedy the endangerment or close the 

impoundment.

B. Surface Impoundment Design And Monitoring Failures Indicate An “Imminent 

Endangerment”

EPA must also base a section 7003 action on the imminence of endangerment. Danger is 

imminent if present conditions indicate a future risk, even if the harm may not be realized for 

years. [Footnote 406: United States v. Velentine, 856 F. Supp. 621, 266 (D. Wyo. 1994).]. In 

other words, there need not be an emergency to find imminent endangerment. [Footnote 407: 

United States v. Conservation Chemical, 619 F. Supp 162 (W.D. Mo. 1985)].

There is no objective rating system, such as the hazard potential ratings, to easily identify those 

impoundments that are most likely to endanger health and the environment through structural 

failure or groundwater contamination. However, several known factors can help assess the 

potential for impoundment failure or contamination and therefore the imminence of 

endangerment. First, one can look to the design, constriction, monitoring, age and height of an 

impoundment to help determine whether the impoundment has a risk of failure. [Footnote 408: 

Blank]. Second, the presence of a liner is a simple indicator of the imminence of groundwater 
831

contamination. [Footnote 409: See U.S. EPA, Hazardous and Solid Waste Management System; 

Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from 

Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010) (Repeating that 

there are high potential risks associated with unlined and even clay lines surface 

impoundments.)].

[see the original comment for the table: High and significant hazard ponds without professional 

engineer design, constriction or monitoring]

Of the 121 identified ponds with high or significant hazard potential, 24 were not designed by a 

professional engineer and 15 of these 24 ponds were likewise not constructed and are not now 

monitored by a professional engineer. [Footnote 410: EPA, Information Request Responses from 

Electric Utilities, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.]. This means that at 

a minimum there are 15 ponds, listed in Table X, that pose a threat to human life or the 

environment but their structural stability is not monitored by a professional engineer to assure 

that they do not manifest their hazard potential. Moreover, these 15 hazard ponds were neither 

designed nor constructed with the expertise, oversight or input of a professional engineer. These 

ponds that present the most substantial endangerment may not be properly designed and 

constructed and they are not regularly monitored by an expert in structural engineering. A 

number of these ponds are more than a half-century-old, and the very newest is a quarter century 

old. [Footnote 411: EPA, Information Request Responses from Electric Utilities, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.]. These 

impoundments are built as high as 126 feet above the ground, they cover a total of more than 756 

acres and contain almost 20,000 acre-feet of toxic slurry. [Footnote 412: EPA, Information 

Request Responses from Electric Utilities, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.].

This combination of factors presents a very clear, imminent and substantial endangerment to 

surrounding communities at risk from structural failure with a resulting flood possibly more 

substantial than Kingston in terms of human lives and the environment, and this says nothing of 

the health and environmental dangers posed by the subtler, but equally important threat posed by 

groundwater contamination.

C. Groundwater Contamination Presents A Substantial And Ongoing Danger

EPA has demonstrated that exposure to coal ash constituents through groundwater pathways 

presents a serious human health endangerment. [Footnote 413: See U.S. EPA, Hazardous and 

Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal 

Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 

21, 2010).]. When a surface impoundment operates with a clay liner—EPA has questioned the 

efficacy of clay liners—or with no liner at all, the potential human harm is much more imminent 

and substantial. [Footnote 414: See U.S. EPA, Hazardous and Solid Waste Management System; 

Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from 

Electric Utilities, Proposed Rule, 75 Fed. Reg. 35128, 35144 (Jun. 21, 2010).]. As EPA has 

already stated, “unlined or clay lined waste management units [] result in risks greater than the 
832

risk criteria of [1 in 5,000] for excess cancer risk to humans or a [hazard quotient] greater than 1 

for noncancer effects to both humans and ecological receptors...” [Footnote 415: See U.S. EPA, 

Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; 

Disposal of Coal Combustion Residuals from Electric Utilities, Proposed Rule, 75 Fed. Reg. 

35128, 35144 (Jun. 21, 2010).].

For most of the 629 surface impoundments, EPA does not know whether a liner is present. 

However, for about 150 ponds, information on liner status is available from the 1995 EPRI 

Comanagement Study. Presently, EPA estimates that approximately 74 percent of the nation’s 

surface impoundments are unlined. [Footnote 416: U.S. EPA, Hazardous and Solid Waste 

Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion 

Residuals from Electric Utilities, Regulatory Impact Analysis, Appendix K1.]. EPA’s health 

review demonstrates that each and every one of these ponds poses a real endangerment. The 

known damage cases and proven likelihood of groundwater contamination from unlined or claylined impoundments demonstrates imminent harm and certainly, the heightened risk of cancer 

from these impoundments raises a reasonable concern for human health, amounting to a 

substantial endangerment. 

These human health and environmental risks from unlined or insufficiently lined impoundments, 

combined with the 137 known groundwater damage cases compiled by EPA and by 

Environmental Integrity Project, Earthjustice and Sierra Club, present EPA with another 

imminent and substantial hazard that EPA should address under the immediate authority of 

section 7003 rather than the delayed closure date presented in the proposed rule.

Should EPA ultimately promulgate rules under the authority of RCRA subtitle C, the risks from 

unstable and unlined impoundments will eventually be diffused. However, given the long leadtime for full applicability of subtitle C to coal ash impoundments, it is important that EPA use all 

available authority to address the threat of another impoundment failure or growing groundwater 

contamination. 

RCRA §7003 provides a strong basis for closure—or, at the very least, remediation—of the most 

perilous ponds. Section 7003 authorizes EPA to take action against any solid waste handling that 

presents “an imminent and substantial endangerment to health or the environment.” [Footnote 

417: 42 U.S.C. 6973.]. Courts have broadly interpreted this language to grant authority whenever

there is reasonable cause for concern that present site conditions may harm human health or the 

environment, either immediately or in the future. [Footnote 418: United States v. Velentine, 856 

F. Supp. 621, 266 (D. Wyo. 1994); United States v. Conservation Chemical, 619 F. Supp 162 

(W.D. Mo. 1985); Leister v. Black & Decker, Inc., 117 F.3d 1414 (4th Cir. 1997).]. There can be 

no doubt that, at a minimum, there are 21 identified ash impoundments without proper design, 

construction or monitoring and 137 cases of groundwater contamination that EPA must consider 

for section 7003 action. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 
833

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10632_DC-047-1

Organization1:Virginia Department of Environmental Quality

Commenter1:Jeffery Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Good morning, my name is Jeffery Steers and I am the Waste Division Director for the Virginia 

Department of Environmental Quality. Today, I am providing an abbreviated version of our 

Agency's formal written comments on EPA's proposed regulatory schemes for Coal Combustion 

Residue, commonly referred to as CCR. While the Commonwealth acknowledges that 

improvements to the management of CCR are needed, such regulatory changes are best left to 

individual states. Virginia has a strong solid waste program and that regulates the management of 

coal ash as industrial waste under this program. Virginia’s regulations provide requirements for 

CCR management, including appropriate criteria for disposal units, while also allowing for its 

beneficial reuse in a manner that is protective of human health and the environment. The 

Commonwealth recognizes the need to continuously enhance its regulations, and have been 

actively doing so, even prior to EPA's proposed regulation. 

Virginia has concerns with EPA's proposals regarding the regulation of CCR, again, we believe 

that regulation of this material is best left to the States. 

We are especially concerned with EPA's proposal to regulate this material as a hazardous waste 

under RCRA Subtitle C. EPA asserts that such treatment is necessary for EPA to retain and 

exercise appropriate enforcement authority. States, like Virginia, have consistently demonstrated 

the ability to conduct an effective and comprehensive RCRA compliance/ enforcement program, 

as is illustrated by EPA's own feedback during the State Review Framework process. We would 

remind you that EPA already does have broad RCRA 7003 enforcement authority to address 

Potential Substantial Threats or Endangerments to Human Health and the Environment for 

releases of solid waste.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10747_DEN-059-2

Organization1:Utility Solid Waste Activities Group (USWAG)
834

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

Opponents to the Subtitle D option persist on incorrectly stating that this would merely preserve 

the status quo under which EPA could only issue "guidance." This is not correct. Under the 

Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal 

units. These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision and violators would be subject to significant civil penalties. EPA would 

also retain its imminent and substantial endangerment authority to take action against any CCR 

units that posed a risk to human health or the environment. Ask any utility that has been the 

subject of a RCRA citizen suit, with injunctive relief and civil penalties in the balance, whether it 

views these regulations as mere "guidance." These are real regulations with teeth and it is 

misleading to suggest otherwise.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10771_DA-002-3

Organization1:Dynegy Inc.

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 4.2.1 3.2.3

Comment Excerpt Text:

EPA's stated reason for favoring the Subtitle C hazardous approach is concern regarding 

enforcement capabilities. Yet federal regulation of CCRs as non-hazardous provides extensive 

enforcement avenues:

1. Most states already have robust regulatory programs that apply to CCR management. Many 

states are likely to adopt federal Subtitle D requirements. Even in the absence of a state program, 

CCR facilities must meet Subpart D requirements; they are not optional, unenforceable 

guidelines.

2. Under RCRA § 7002 any person, including States, can bring a civil enforcement action against 

any facility for violating any Subtitle D requirement. EPA is also proposing the extensive public 

release of CCR inspection and monitoring data to further enable this provision.

3. Under RCRA § 7003, EPA can also enforce Subtitle D requirements whenever a CCR facility 

"may present an imminent and substantial endangerment to health or the environment". The 
835

threshold for EPA to use this authority is low, as the Courts have interpreted RCRA § 7003 

broadly.

4. Finally, to ensure compliance of CCR operations, EPA also has separate enforcement 

authority under the federal Clean Water Act, as does the Office of Surface Mining under the 

federal Surface Mining Reclamation and Enforcement Act.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10771_DA-002-4

Organization1:Dynegy Inc.

Commenter1:Linda Whelan

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.1

Comment Excerpt Text:

Dynegy supports the federal regulation of CCRs as nonhazardous waste. Subtitle D regulations 

implemented and enforced by the States- as backstopped by EPA's broad enforcement authority 

under RCRA § 7003, RCRA's citizen suit provisions, and authorities under the other federal 

statutes --would protect human health and the environment in a manner equivalent to Subtitle C 

regulation, but without unduly burdening the economy or threatening jobs and electric reliability.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10791_DA-022-2

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The second myth is that EPA's Subtitle D option is only "guidance." This is not correct: under 

the Subtitle D option, EPA would issue federal regulations specifically designed for CCR 
836

disposal units. These regulations would be directly enforceable by the states and the public, and 

violators would be subject to significant civil penalties. These are real regulations with teeth and 

it is misleading to suggest otherwise.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10792_DA-023-3

Organization1:PMI Ash Technologies

Commenter1:Kyle Crake

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.4

Comment Excerpt Text:

The only issue is whether the standards can be enforced uniformly. Rather than a 3 to 4 year 

implementation as proposed in EPA's Subtitle D option, we suggest that they be able to be 

enforced more quickly via a legislative fix that would give EPA full authority to regulate CCRs 

similar to municipal solid waste. PMI Ash supports strong standards via Sub-title D of RCRA by

enacting federal enforcement authority such as recommended by the Congressional Research 

Service entitled, " Regulating Coal Combustion Waste Disposal: Issues For Congress". 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11027_CHA-062-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Pat McCable

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.5.1 4.2.1

Comment Excerpt Text:

USWAG supports the "Subtitle D Prime" option, with appropriate adjustments, because of the 

options presented by EPA this is the one that best balances clean energy with affordability and 

reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures 

the safe disposal of CCRs; the "D Prime" option will meet this objective. 
837

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve 

the status quo under which EPA could only issue "guidance." This is not the case. Under a 

Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal 

units. These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision. EPA would also retain its imminent and substantial endangerment 

authority to take action against any CCR unit that posed a risk to human health or the 

environment.

We agree that disposal units that are not fully protective must either be upgraded or closed; 

however, there are many CCR surface impoundments which are perfectly safe. The "D Prime" 

option will allow for development of a regulatory program that meets both of these objectives. 

A major short-coming, however, of either proposed Subtitle D approach is the lack of a 

mechanism for the states to step in and administer the regulations. Clearly, there are state 

regulatory programs that already meet or exceed the proposed Subtitle D standards. States with 

qualified programs should be given the option of administering the federal Subtitle D rules if 

they so desire. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11291_CHI-005-3

Organization1:Wisconsin Electric Power Company d/b/a We Energies

Commenter1:Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.4.3 4.1.1 3.1.2

Comment Excerpt Text:

We strongly favor the implementation of a RCRA Subtitle D (non-hazardous) approach to fill the 

need for consistent national regulation for CCPs. We are concerned that a Subtitle C (hazardous) 

approach under one of the options in the proposed rulemaking will introduce a regulatory barrier 

and place an unintended stigma on CCPs with our customers that cannot be overcome. In fact, 

the stigma of a hazardous waste label on CCPs would not encourage beneficial use, but will 

certainly impair it. Unfortunately, this issue has already had a negative impact on some valuable 

beneficial uses as evidenced by cancelled and deferred projects that would have benefited from 

better quality construction and reduced cost to society if CCPs were used as they have been in 

many other past projects.

Undue restriction of well established and safe beneficial uses for CCPs under the proposed 

Subtitle C rulemaking provisions is over-reaching and is a serious concern for We Energies, 

especially in light of our long term commitment to develop a wide range of beneficial uses- an 
838

effort which has taken many years to propose, test and promote. The Subtitle D approach will 

establish national standards similar to those employed for municipal waste management 

facilities. If states do not adopt the national standards within a defined timeframe, the EPA has 

the authority to step in and manage the non-compliant state programs as they may already take 

action with other waste management activities under the endangerment provision of RCRA. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11344_P-057-1

Organization1:Pennsylvania Department of Environmental Protection

Commenter1:Michael G. Forbeck

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1 3.2.3

Comment Excerpt Text:

Pennsylvania has residual waste regulations in place that govern the transportation, storage and 

disposal of CCR. These regulations and the implementation are based on sound scientific and 

engineering standards, and are similar to the Commonwealth's RCRA Subtitle D-authorized 

municipal waste regulations and have been in effect since 1992. CCR landfills that have been 

designed and operated in accordance with these regulations have not resulted in pollution to 

groundwater, surface water or air, and they are the same residual waste regulations that were 

used as a template for EPA's existing Guide for Industrial Waste Management. According to 

EPA, that Guide was designed to protect groundwater, surface water and air resources under an 

industrial Subtitle D-like residual waste program. It is unclear why EPA is now considering 

regulating CCR under Subtitle C instead of the current Subtitle D-like EPA guidelines, 

considering the physical and chemical characteristics of CCR present very little potential to 

adversely affect human health and the environment, compared to many other residual wastes.

Pennsylvania's successful management of CCR including tracking of historical waste analysis 

data generated over the last 30 years, does not indicate in any way the need for the hazardous 

waste designation EPA is proposing. 

Comparison of Subtitle C and D 

According to EPA, the design and performance standards for the proposed regulations will likely 

be the same no matter what regulatory scheme is chosen. The major differences is that EPA 

asserts such a designation is necessary for it to retain and exercise appropriate enforcement 

authority and EPA cannot require States to permit landfills under Subtitle D. 

Speaking to the latter, with the requirement for liners, groundwater monitoring and other 
839

operational requirements, Pennsylvania regulations already require performance standards that 

exceed those outlined in the Subtitle C or D proposal. By current regulation, PA also requires 

facilities to be permitted or authorized to manage CCR. 

As to the need for EPA enforcement, Pennsylvania's Solid Waste Management Act authorizes 

State enforcement authority and PA DEP exercises that authority. Subtitle D requires State 

programs to have the necessary enforcement authority as part of the federal approval process. 

This approach has been successful for Pennsylvania, as evidenced by the 96 % compliance rate. 

In addition, EPA already has broad RCRA 7003 enforcement authority to address Potential 

Substantial Threats or Endangerments to Human Health and the Environment as well as 

imminent hazards for releases of solid waste and, therefore, does not need the additional 

authority under Subtitle C. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11574_L-022-4

Organization1:Gibbco, Inc.

Commenter1:Bruce Kazich

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.1

Comment Excerpt Text:

The boiler slag that had been safely recycled for decades will now be landfilled, creating higher 

costs for utilities and therefore higher energy costs for all citizens.

Our customers will replace boiler slag with naturally mined materials, utilizing more energy, 

including fossil fuels, natural gas and electricity, further increasing our carbon footprint.

The environment can and will be protected with strong regulations under subtitle D. EPA should 

develop a performance based federal program for CCPs under RCRA D, which will insure that 

disposal is safely managed, while continuing to promote and expand beneficial use.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0237-3

Organization1:Edison Mission Energy, LLC

Commenter1:Basil Constantelos

Commenter Type: Electric Utility Company
840

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

V. EPA’S PUBLIC HEALTH AND ENVIRONMENTAL CONCERNS RELATED TO CCR 

DISPOSAL ARE BETTER ADDRESSED THROUGH A MORE NARROWLY TAILORED 

APPROACH USING EPA’S EXISTING AUTHORITY.

EPA requests comment on whether to consider additional data relating to state regulatory 

programs. In general, EME submits that EPA has no basis in law or fact to take over the state 

programs designed to regulate non-hazardous solid wastes. Rather, when it finds such a 

regulatory program to be insufficient, EPA should work with that state to improve the regulatory 

program and, as is necessary to meet its public health and environmental standards, use the 

Agency’s authority under RCRA § 7003. EPA’s Proposed Rule is unnecessary to meet the 

agency’s concerns and overly broad in its scope. EME does not have experience in all states, but 

the states in which EME operates coal-fired power plants, Pennsylvania and Illinois, maintain 

comprehensive programs that specify approved beneficial uses and acceptable characteristics for 

CCRs. CCRs used for beneficial use must meet approved state uses and are subject to state 

analytical standards. Pennsylvania and Illinois also operate regulatory programs covering wastes 

and groundwater for protecting public health and environmental quality. Indeed, Pennsylvania’s 

regulatory program for CCR disposal is of such high quality that even those arguing to remove 

state control over CCRs were forced to concede as much [Footnote 27: Earthjustice Comment at 

17.]. The Proposed Rule would unnecessarily burden states and companies like EME that have 

implemented and operated under stringent disposal standards, by imposing additional regulation 

without any benefit [Footnote 28: EME Comment at 90-99.]. Even in states with inadequate 

regulatory programs, the Proposed Rule would provide limited benefits [Footnote 29: Id. at 

Section III.F.] If there are deficiencies in a state’s regulatory scheme, the EPA currently 

possesses all the authority it needs to address the endangerment of environmental and public

health in states with deficient regulatory frameworks for CCR disposal under RCRA § 7003. 

Under this section, EPA has the authority to address imminent and substantial endangerment to 

human health or the environment related to the handling, storage, treatment and transportation of 

solid or hazardous wastes at specific sites without adding undue costs to operators and 

consumers in states that are not deficient.

A. The Regulatory Programs in Pennsylvania And Illinois Are Sufficient To Meet EPA’s Public 

Health and Environmental Concerns

Pennsylvania’s regulatory framework covers CCR and other waste by-products of the 43 coalfired electricity producers in the state. In total, 20 million tons of CCR are generated annually, 11 

million of which are used in mine reclamation and as structural fill while the remaining 8-9 

million tons are landfilled as residual waste. The transportation, storage, and disposal of CCR is 

governed by the state’s residual waste regulations [Footnote 30: Pennsylvania Department of 

Environmental Protection Comment at 1-2.]. These regulations require liners and groundwater 

monitoring for all new CCR landfills and surface impoundments, establish design standards, and 

require regular inspections [Footnote 31: Id.]. Indeed, the Pennsylvania regulatory framework 
841

served as a basis for the EPA’s existing Guide for Industrial Waste Management [Footnote 32: 

Id.].

Illinois’s regulatory framework for the disposal of CCRs is comprehensive, strictly enforced, and 

more than sufficient to meet the human health and environmental concerns EPA identified in the 

Proposed Rule. The state, acting through the Illinois Pollution Control Board (the “Board”), 

adopted rules identical in substance to the RCRA subtitle D requirements for the regulation of 

non-hazardous waste management facilities. The Illinois Environmental Protection Act (IEPA), 

which regulates CCR disposal, applies to both new and existing landfills [Footnote 33: 35 

Ill.Adm.Code Part 811; 35 Ill.Adm.Code Part 814. For a more in-depth discussion of the 

application of the Illinois standards to a Midwest Generation facility, please see the attached 

rebuttal to “In Harm’s Way” that details Midwest Generation’s and Illinois EPA’s handling of 

the Lincoln Quarry facility.]. The IEPA requires that all non-hazardous solid waste landfill 

operations have leachate collection and management systems, groundwater monitoring, properly 

located monitoring wells, a zone of attenuation, and daily and final cover for the landfills. The 

Board does grant “Adjusted Standards” if a landfill operator or owner makes the requisite 

technical demonstration that the landfill in question has sufficient site-specific conditions to 

warrant an adjusted standard. However, the “Adjusted Standard” is granted only if it is consistent 

with federal law and the landfill can continue to afford the same level of protection to public 

health and the environment as the generally applicable state landfill regulations.

The regulatory programs in Pennsylvania and Illinois are in no way deficient and currently meet 

or exceed EPA’s public health and environmental standards. For those states that have enacted, 

maintained, and enforced a comprehensive regulatory framework for the disposal of CCRs the 

Proposed Rule would be both costly and unnecessary. The Proposed Rule would do little to 

improve the regulation of CCR disposal in states like Pennsylvania and Illinois. EPA should 

focus its resources away from those states with adequate regulatory programs instead of creating 

duplicative requirements.

B. EPA’s Existing Enforcement Authority Under RCRA § 7003 Is Sufficient To Address CCR 

Disposal Practices That Present Any Risk To Human Health Or The Environment

EPA’s existing authority under RCRA § 7003 is sufficient to address the agency’s legitimate 

health and environmental concerns without unduly burdening those states and operators who 

have maintained and followed rigorous regulatory frameworks for CCR disposal. This authority 

allows EPA to specifically target those states and operators that do not maintain regulatory 

programs and site-specific standards necessary to meet EPA’s concerns. EPA should use its 

existing authority under § 7003 to specifically target those states and operators who present an 

imminent and substantial endangerment to human health and the environment rather than 

institute the overly broad Subtitle C option in the Proposed Rule and unfairly and inefficiently 

punish states, operators of electrical generating units, and ultimately consumers.

As we noted in our prior comments, EPA acknowledges that its existing authority under RCRA § 

7003 gives it precisely the authority it needs to address any risks to human health and the 

environment associated with the disposal of CCRs [Footnote 34: 58 Fed. Reg. at 42,476 

(“Considering industry’s trend toward more protective waste management practices, the fact that 
842

State regulatory programs are generally adequate, and because Federal authorities exist that can 

address these wastes, EPA has concluded that current management practices and regulatory 

controls are adequate.”).]. We highlighted several cases in our prior comments in which courts 

have upheld EPA’s authority to act under § 7003 [Footnote 35: EME Comments at 105-106.] and 

further noted that courts have routinely held that the endangerment standard of RCRA § 7003 is 

broad, [Footnote 36: See, e.g., United States v. Valentine, 856 F. Supp. 621, 626 (“Section 7003 

should be construed in a liberal, rather than a restrictive, manner”).] requiring neither certainty 

nor proof of actual harm to proceed under the section [Footnote 37: Dague v. City of Burlington, 

935 F.2d 1343 (2d Cir. 1991).]. This legal precedent confirms that the scope of § 7003 authority 

is broad and more than sufficient to mitigate the risks associated with each of the groundwater 

contamination cases cited in the Proposed Rule. The legislative history, which states that § 7003 

is “a prospective act designed to prevent improper disposal of hazardous waste types in the 

future” further confirms that the section was intended to address exactly the types of risks 

associated with the cases cited in the proposed rule [Footnote 38: United States v. Waste 

Industries, Inc., 734 F.2d 159, 166 (4th Cir. 1984) (quoting H.R. Committee Print No. 96-IFC 

31, 96th Cong., 1st Sess. at 32 (1979) (“the Eckhardt Report”) (emphasis added).]. Further, the 

agency’s own guidance to its regional administrators instructed them to act under § 7003 where 

existing solid waste authorities prove inadequate [Footnote 39: U.S. EPA Office of Enforcement 

and Compliance Assurance, Guidance on the Use of Section 7003 of RCRA, at 21 (October 

1997).].

The Subtitle C option of the Proposed Rule would unnecessarily saddle states and generators that 

have implemented, enforced, and followed comprehensive regulatory frameworks with billions 

of dollars of unnecessary spending so that EPA can avoid conducting the “facilityspecific and 

resource-intensive” inquiry required by § 7003 at the 80 surface impoundments that EPA 

projects may be problematic. Indeed, as we noted above, environmental groups have done much 

of the basic inquiry into the most problematic impoundments and most deficient state regulatory 

frameworks for EPA. The agency need simply follow up. Unfortunately, the NODA requests 

information to improve the Proposed Rule without requesting information on whether the 

Subtitle C option of the Proposed Rule is the prudent course of action in the first place. This is 

particularly troubling in light of the fact that the EPA, the courts, Congress, and industry all 

recognize that RCRA § 7003 gives the agency adequate authority to address the human health 

and environmental concerns raised in the Proposed Rule and the NODA without adding undue 

regulatory and financial burden to those states and generators who have complied fully with 

Subtitle D’s standards.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-DEN-0039-2

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association
843

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.2

Comment Excerpt Text:

One of EPA's stated concerns with the Subtitle D option is its perceived lack of federal 

enforceability under this approach. However, EPA does have the authority to issue federally 

enforceable Subtitle D rules for CCRs; it simply is not using that authority. 

I refer EPA to the same RCRA provisions under which it issued federally enforceable Subtitle D 

rules for municipal solid waste landfills. The first provision, Section 4010(c), directs EPA to 

develop Subtitle standards for facilities that may or may potentially receive household or 

conditionally exempt small quantity generator waste. 

A related provision, Section 4005(c), authorizes EPA to enforce these Subtitle D regulations in 

states that fail to adopt and implement the federal rules. 

CCR disposal facilities fall within the scope of EPA's authority under these provisions, and 

without any question may or have the potential to receive these wastes. 

The development of Subtitle D regulations under 4010 of RCRA offers a win-win for EPA and 

the public. While this approach would likely require supplemental proposals, it will assure that 

the agency gets it right, providing the agency with the enforcement authority it desires while 

avoiding the unnecessary and adverse implications of Subtitle C. 

There is simply no reason for EPA to pursue the Subtitle C approach when it can develop 

federally enforceable rules under the less controversial, yet equally protective, Subtitle D 

nonhazardous waste program

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Section 4.2.6 - General concerns about self-implementing RCRA Subtitle D standards 

(35211)

Total Number of Submissions: 16

Total Number of Comments: 20

Comment Number: EPA-HQ-RCRA-2009-0640-03707-3

Organization1:Green Century Capital Management

Commenter1: Kristina Curtis

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 8.6.1 9.4.7 9.4.5

Comment Excerpt Text:

Consistent, federally-enforceable regulations would require utilities to use best practices for 

managing their coal ash, which would reduce environmental risk. The catastrophic coal ash spill 
844

at the Tennessee Valley Authority (TVA) pond in December2008 demonstrated that current 

regulations are not enough to mitigate environmental and financial risk for utilities and their 

shareholders. TVA was in compliance with state regulations before the ash pond failure but now 

faces an estimated $1.2 billion in spill-related costs, as well as expenses associated with over 50 

lawsuits that have been subsequently filed. The TVA disaster, along with the 24 other cases of 

proven coal ash-related environmental damage reported by EPA, makes it clear that stronger 

rules are needed to ensure that companies consistently use best practices to mitigate risk.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-18

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Duke Energy does not believe that a self-implementing regulation as outlined in the Proposed 

Rule is a workable solution. The uncertainty associated with the compliance and reporting 

requirements of the self-implementing regulatory structure proposed by EPA under the Subtitle 

D option would add an undue regulatory burden with no corresponding environmental benefit. 

Rather, it is essential that EPA provide a mechanism for states with qualified programs to 

administer the CCR rules and standards

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-38

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4

Comment Excerpt Text:

Furthermore, it must be noted that most existing state environmental regulatory programs 

provide that all applicable state agencies (e.g., Department of Natural Resources or other state 

and local agencies with jurisdiction over specific siting restrictions) be part of the siting and 

permitting process for new surface impoundments and landfills. EPA should consequently 
845

provide a mechanism for states to adopt these regulations to ensure all location restrictions are 

addressed before approvals are issued for new facilities. Again, it is evident that any selfimplementing rule would create an excessive burden by requiring compliance with duplicative 

and potentially conflicting requirements with no corresponding human health or environmental 

benefit.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06400-14

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.4 4.4.7.7.2 4.8 4.2.3.1 4.2.3.2 7.4.2 10.5.2.3

Comment Excerpt Text:

Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and 

monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable 

long-term protection. The addition of a 4010 permit for CCR facilities provides the mechanism 

to respond to monitoring results and provide assurance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a 

licensed professional engineer’s judgment will take care of the details in terms of proper CCR 

handling. It makes much more sense for EPA to confer with the utility industry and their service 

providers, like ourselves, to identify specific fundamental performance criteria under a 4010 

permit program. Proper handling of CCRs requires waste analysis to determine the specific 

characteristics of the particular waste stream (e.g., its potential for generation of hydrogen sulfide 

gas), its pH, water content and impact on slope stability, potential for heat generation and 

potential to clog leachate and gas collection lines. There needs to be a plan to handle the material 

in a way that controls dust, and uses the appropriate amount of moisture to control dust. 

Containment standards are necessary for transportation of dry CCRs. 

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to 

assure proper recognition of waste chemistry and physical characteristics. We realize that 

because the record for this rulemaking has not focused on describing good operating practices, 

EPA may need to re-propose a Subtitle D permit program specific to CCR only or to proposed 

modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to 

delay progress, it would make sense for EPA to convene an advisory panel or work group of the 

regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for 

example, have developed standards regulating use and disposal of CCRs and would serve as 

resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection,
846

General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis 

requirements, permeability requirements, distance to groundwater, mixture requirements, 

application and compaction requirements, monitoring, storage requirements, general operating 

standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental 

Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for 

CCR mixtures).] and experts in affected community and environmental groups. This group could 

engage in the kind of discussion that would allow EPA to re-propose promptly a fully developed 

standard. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06400-15

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.8

Comment Excerpt Text:

Flexibility to employ alternative liner and cover designs (CCR Proposal at 35202): EPA forbids 

use of alternative liner and cover designs simply because its Subtitle D proposal does not 

envision a permit. As we stated at the outset of these comments, we believe EPA has and should 

exercise its authority under RCRA Section 4010 to require federally enforceable permits. The 

program for MSW landfills has considerable experience with alternative liner and cover designs, 

and state Subtitle D permit writers have sufficient experience to evaluate safe alternatives to 

EPA’s basic designs. See, e.g., Interstate Technology and Regulatory Council, Technical and 

Regulatory Guidance for Design, Installation, and Monitoring of Alternative Final Landfill 

Covers (December 2003).

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-19

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government
847

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.2

Comment Excerpt Text:

In order to accomplish this recommended approach, EPA should undertake considerable 

additional analysis based on comments, revise its proposed rule to focus solely on regulation 

under Subtitle D of RCRA in a manner consistent with the approach used for municipal solid 

waste that calls for state oversight. Once these revised rules are drafted, EPA should provide for 

additional public comments. 

The department further recommends to EPA that the best management practices for CCR 

materials is under an effective Subtitle D waste management program with adequate state 

oversight. An effective subtitle D program is a solid waste program with sufficient state 

regulatory over-sight covering: facility siting, liner requirements, monitoring, capping, long term 

care and financial responsibility that should be adequate to ensure proper management of CCR 

material. This must include review by state Waste Program Regulatory staff in siting, design, and 

construction to ensure compliance. Based on our experience, WDNR does not believe the EPA 

self-implementing approach would be successful and the self-implementing provision should be 

removed and replaced with a requirement for state oversight where states can demonstrate an 

effective program under Subtitle D. WDNR recommends EPA reexamine its interpretation of its 

regulatory authority to delegate to states the authority to manage Subtitle D equivalent programs. 

If additional authority is needed for EPA to delegate such a program to the states, then EPA 

should work with Congress to create the necessary authority. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-46

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.1.2

Comment Excerpt Text:

It is also essential that the rule containing either exemptions or an expeditious conflict resolution 

process between State agencies and EPA Regions for in the event of landfill technology change, 

improved design methods, construction advances, or other changes that are not compatible with 
848

the technical design requirements listed in the proposed rule. Examples of geologic scenarios or 

construction materials that vary from the proposed rule are cited previously. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06808-13

Organization1:New Mexico Environment Department (NMED) and Energy, Minerals and 

Natural Resources Department (EMNRD)

Commenter1: Bill Brancard

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.2 3.7.5 3.7.4 3.4.1.4.1

Comment Excerpt Text:

Subtitle C regulation would be much more protective than Subtitle D regulation because it would 

allow New Mexico control over management practices from “cradle-to-grave,” that is from point 

of generation to final disposal. Whereas Subtitle D regulation would only cover CCR disposal, 

Subtitle C would lead to a phasing out of wet management of CCRs in surface impoundments, 

which is the primary cause of CCR disposal-related environmental contamination. The State 

would also have much better control over corrective action and closure/post-closure care under 

Subtitle C regulation; under Subtitle D these activities are left to the facilities to implement. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06820-8

Organization1:Western Business Roundtable

Commenter1: Holly Propst

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

EPA’s proposed Subtitle D alternatives are not without some problems. The Roundtable’s 

biggest concern is the fact that both alternatives appear to lack any mechanism for qualified state 

programs to step in and directly administer the regulations, even where those programs meet or 

exceed the federal controls. Such an approach makes no practical sense, and it would result in 
849

parallel and redundant regulatory programs for the same materials. 

EPA could readily develop a process for evaluating state CCR controls and determining whether 

state controls are no less stringent than the final Subtitle D controls (much like the Agency does 

now in the case of municipal solid waste landfills). In those states that have qualifying controls 

for CCRs, EPA should allow the states (with appropriate EPA backup) to administer the controls. 

Under this approach, many of the self-implementing procedures in the Subtitle D approach could 

be eliminated

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07534-1

Organization1:Aquaterra Environmental Solutions, Inc.

Commenter1: Scott Waltrip

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Because this is a self-implementing rule there may be no state oversight, and the only guaranteed 

enforcement mechanism will be through the court systems. Therefore it is imperative that this 

proposed Subtitle D rule be as clear as possible.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-9

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

The use of self-implementing rules raises compliance concerns and will lead to a dual regulatory 

system in those states, including Maryland, that have implemented more comprehensive 
850

requirements. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-24

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

MassDEP has concerns with the self-implementation aspect of the proposed Subtitle D rules. 

Under this option, which MassDEP prefers, EPA should clarify that a state can be more 

restrictive than the federal rule, so that where a state has a Subtitle D regulatory program, the 

state program and permitting process takes precedence over any self-implementation aspects of 

the proposed rule. (The rule simply states now that an owner or operator must comply with any 

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

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-32

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.5.2.3 4.1.1 10.2.2.1

Comment Excerpt Text:

MassDEP strongly recommends the regulation of CCR under Subtitle D and beneficial uses of 

CCR under a BUD program like the one established under the Massachusetts solid waste 

program for the reasons stated above. MassDEP believes that there are legitimate beneficial uses 

for CCR, particularly where encapsulated in a solid matrix and other uses that may be 

appropriate upon review by a state environmental agency. MassDEP does not believe that a selfimplementing program for many beneficial uses is appropriate since CCR can contain numerous 
851

contaminants of concern that have the potential to increase risks to public health and the 

environment where uses are not carefully reviewed and controlled. However, an approach that 

includes federal or state review and approval of beneficial uses, coupled with a self-certification 

or third party certification of compliance can be made to work. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The commenter is also referred to Unit IV of the preamble for a discussion of EPA’s decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-16

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.2.2

Comment Excerpt Text:

According to EPA, one reason for proposing Subtitle C regulation is that EPA cannot require 

states to issue permits for CCR management units under Subtitle D. Arizona, like many other 

states, does have a permitting mechanism for CCR surface impoundments and landfills.

EPA further suggests regulation under Subtitle C of RCRA is necessary because EPA lacks 

direct enforcement authority under Subtitle D. This fails to acknowledge the states' existing 

enforcement authorities and actions under RCRA. ADEQ, like other state agencies, currently 

inspects Subtitle D facilities and takes enforcement when necessary. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09530-10

Organization1:PSEG Power LLC and Public Service Electric and Gas

Commenter1:Eric B. Svenson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
852

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

XI. The Subtitle D Program Must Be Enforced at the Federal level 

Due to apparent inconsistencies in how the various state programs enforce under Subtitle D and 

the absence of qualified state programs to directly administer the Subtitle D program and enforce 

regulations, PSEG is concerned how EPA would ensure there is consistent application of 

enforcement of a Subtitle D program at the state level. 

While there may be state CCR regulatory programs with permitting, liner and groundwater 

monitoring requirements similar to those proposed in the Subtitle D options, such states are in 

the minority. The question of what these state programs are doing to uniformly ensure protection 

of the environment and administer enforcement remains. Thus in the absence of a federal 

enforcement program, the administration of self-implementing federal controls, while possibly 

duplicative, would at a minimum ensure these structures are managed to be fully protective of 

human health and the environment.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-6

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

Subtitle D Prime, much like the main Subtitle D proposal, requires some notable improvements 

for it to be an effective and manageable rule. SRP believes that a fundamental improvement in 

the Subtitle D Prime and the main Subtitle D proposal would allow qualified state programs to 

directly administer the federal Subtitle D regulations for CCRs when the state program meets or 

exceeds the federal requirements. This action would minimize duplicative regulation by state and 

federal agencies and allow qualified state programs to tailor the rules to their unique situations 

instead of the self-implementing approach contained in EPA's proposal. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a
853

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-54

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.2.2

Comment Excerpt Text:

B. Many States Are Unlikely To Adopt Subtitle D Criteria

Overarchingly, there is no subtitle D criteria that can ensure “no reasonable probability of 

adverse effects on health or the environment from disposal” of coal ash and other CCRs. 

Decades of failure by state regulatory agencies to regulate the disposal of these wastes in any 

reasonably effective manner make this clear. In addition, any argument in favor of subtitle D 

regulation ignores the states’ collective failure to enforce the subtitle D criteria that was 

promulgated by EPA over three decades ago in 1979. [Footnote 335: Criteria for Classification 

of Solid Waste Disposal Facilities and Practices, Final Rule, 44 Fed. Reg. 53438, (September 13, 

1979).].

Section III.B.2, supra, describes the failure of states to enforce the subtitle D open dumping 

criteria found in sections 247.3-3 and 257.3-4. [Footnote 336: 40 C.F.R. §§ 257.3-3 and 257.3-

4.]. The open dumping criteria found in these provisions are exceedingly straightforward. For 

example, for the key groundwater protection standard in section 257.3-4, a violation occurs when 

the groundwater exceeds a specified MCL beyond the solid waste boundary of a coal ash dump. 

Yet at site after site where contaminated groundwater tripped the standard, for thirty years the 

states declined to enforce this regulation. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10550-2

Organization1:Lake Wylie Marine Commission (LWMC)

Commenter1: H. S. Hanks

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1
854

Comment Excerpt Text:

Subtitle D is weak. States have proven that they are not going to appropriate adequate funds to 

monitor and inspect coal ash [illeible]. Clearly Tennessee, North Carolina, South Carolina, and 

Alabama are not inspecting and testing CCR storage at a reasonable level. The EPA is going to 

have to inspect or require the states to test and inspect storage, transportation, and disposal of 

CCR.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: TRANS-ARL-0002-5

Organization1:Environmental Integrity Project

Commenter1:Eric Shaffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A lot of talk about Subtitle D. Under Subtitle D, if you contaminate groundwater at these sites, 

you are supposed to be shut down or upgraded. How many of these sites failed to meet that 

standard and has anything been done about enforcement?

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule. The Agency is 

unclear as to the point the commenter is trying to make with regar to the number of sites 

failing to meet groundwater standards. Under the rule being promulgating in this rule, existing 

CCR surface impoundments and existing CCR landfills will be able to continue operation for the 

remainder of their useful life. However, unlined CCR surface impoundments, as defined in the 

rule, must initiate closure as part of their corrective action plan is they exceed any groundwater 

protection standard at any time in their life.

Comment Number: TRANS-CLT-0153-1

Organization1:Greenpeace USA

Commenter1:Robert Gardner

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:
855

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Business as usual will not protect the health and welfare of the American people. Responding to 

pressure from the utility industry, prior administrations have allowed the industry to police itself 

or self-regulate under a patchwork of state directives, leading to the extensive contamination of 

water and land by toxic heavy metals. This approach has not and will not protect streams, ponds, 

rivers, lakes and other waters. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Section 4.3 - Notifications: state and public notifications of third-party certifications 

(35194-35195)

No comments are associated with this issue.

Section 4.3.1 - EPA solicits comment regarding methods for providing notifications to 

public and states: O/O must maintain internet site to post notifications and info that 

standards are met (35194, 35195)

Total Number of Submissions: 20

Total Number of Comments: 24

Comment Number: EPA-HQ-RCRA-2009-0640-00368-5

Organization1:BMC Aggregates L.C.

Commenter1: Sherman Lundy

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.3.2.1 3.11

Comment Excerpt Text:

5. As a private business regulated by local, state, and federal rules, any data required for such 

operations should be provided to the appropriate contractor (whether public or private) or 

appropriate governmental agency however, publication of that data should be the discretion of 

the contractor or agency and should not be a requirement for the business under contract. Also, 

the development of such regulations for the operations as proposed by governmental agencies or 

requirements by private contractors should be result of the best science and review by the 

appropriate agencies, contractors, service providers rather than public debate. Our industry was 

not included in any of the reviews or discussions regarding the CCRs and quarry reclamation at 

any level.
856

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site for reporting the regulatory 

requirements of the rule and the basis for this requirement as well as other reporting and 

notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06040-7

Organization1:Longview Power, LLC

Commenter1: Joseph R. Douglass

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Longview objects to the numerous provisions in the proposed Subtitle D approach to require 

maintenance of a "publicly accessible internet site". Documentation of regulatory compliance is 

currently available to the public, through the regulatory agencies. Dissemination of this extensive 

information directly to the public would add further compliance costs, and is best uniformly 

managed by the regulatory agency rather than by each individual regulated facility.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site for reporting the regulatory 

requirements of the rule and the basis for this requirement as well as other reporting and 

notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06251-7

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.3.2

Comment Excerpt Text:

COMMENT: Effective mechanisms already are in place for both public input and review of 

regulatory documents through the Wisconsin Department of Natural Resources (WDNR) . 

Everything submitted to WDNR, except Confidential Business Information (CBI), is a public 

record and is available to the public. WDNR is the appropriate avenue to make this information 

available as it will provide consistency and continuity of the information available to the public. 

For example, we are aware that WDNR is assembling a database to house all beneficial use 

information covered by their Beneficial Use of Industrial Byproducts program (NR 538 Wis. 

Admin. Code) and provide public access to the data. Therefore, additional requirements for an 

individual company to maintain an independent internet site are redundant and provide no 
857

additional benefit to the public.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-143

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth believes that full public notice prior to any Subtitle D permit approvals is 

the best route. The department would probably place the Subtitle D requirements in its special 

waste regulations, and require publication of public notice in the local paper. The agency also 

places these legal advertisements on its internet site.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-75

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

E. Southern Company Opposes the Delegation of Agency Information- Management Functions 

to Industry. 

EPA repeatedly expresses concern about a lack of direct federal enforcement of a Subtitle D 

program. One response to that concern is a proposal that would require owners and operators of 

surface impoundments to create a web site and post certain information to the internet, such as 
858

notifications, demonstrations, and reports required under the Subtitle D regulations. [Footnote 

274: See 75 Fed. Reg. 35128, 35194 (June 21, 2010).] Southern Company vigorously opposes 

that proposal. EPA may assemble and post information it deems useful or necessary as part of 

the regulatory oversight process, subject to any claims of confidentiality. However, absent 

specific statutory authorization, it is inappropriate for EPA to delegate that oversight function to 

the regulated community. 

Southern Company has identified at least three substantial problems associated with outsourcing 

EPA’s information management responsibilities to those subject to EPA regulation. First, no 

statute authorizes EPA to demand that private parties act as an information clearinghouse for 

information pertaining to EPA’s regulatory functions, either generally or in the specific context 

of CCBs. To the contrary, public information access statutes such as the Freedom of Information 

Act are predicated on an assumption that information held by the government is presumptively 

public, while information held by a private entity presumptively is not. 

Second, Southern Company will not post information Southern Company deems to be 

confidential. As discussed in greater detail below, see Part V.F, this includes information 

pertaining to the structural stability of ash pond impoundments. Under the usual scenario, if EPA 

holds information Southern Company regards as confidential, the burden is on Southern 

Company to demand that EPA protect the information from public disclosure and to sue EPA in 

federal court if EPA refuses to do so. By attempting to outsource the information management 

role to industry, EPA effectively allows industry to make the initial determination as to 

confidentiality and places the burden on citizens and EPA to take action to compel disclosure. 

Southern Company questions whether EPA truly desires that result. 

Third, Southern Company questions whether citizen groups will accept electric utility’s selfreported information as compared to information that a federal agency may provide, regardless 

of the amount of effort Southern Company exerts to ensure the accuracy of information. By 

requiring citizen groups to obtain their information from industry instead of a regulator, EPA is 

inviting conflict as to the adequacy of data and the sufficiency of the utilities’ responses to 

citizen groups’ requests for clarification or additional information. The fact that the industry has 

provided information to a federal agency, subject to criminal penalties for providing false 

information, [Footnote 275: See 18 U.S.C. 1001,] provides a useful public assurance of the 

integrity of the information

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-55

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive
859

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Most large electric utilities have websites and post information about the plants. Regulatory 

permitting reports and information for the plants, including analytical results, are not found on 

these sites. Instead, states or EPA post this information on their websites as they review the 

information. Utilities should provide links to EPA and state websites where this information can 

be found in order to limit the plant’s ability to interpret the information inappropriately. 

A public notification of document postings is not necessary if the documents will only be 

provided on the website. Most websites have a recent additions link and/or optional email 

notifications for any new information posted on the website. Unless a public notification is 

posted outside the website (e.g., newspaper ad), only a limit group of people would be aware of 

new information. In addition, in rural areas, internet is limited. Hardcopies of plant information 

should to be readily available in a public access area, such as a library. Biasing plants to provide 

information to websites and not to public access areas has the potential to limit the circulation of 

information pertinent to local communities.

Public notifications of potentially dangerous conditions at a plant pose a different complexity 

outside information already available on websites. Local emergency responders and the state 

should immediately be notified of these conditions to be put on alert for a possible evacuation. 

Emergency responders are trained to conduct safe and orderly evacuations. 

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-45

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

The proposed notification by use of internet web pages is after-the-fact and does not substitute 

for interaction with the utility and its consulting engineer at the siting and design stage and 

observation during construction. We have found that these steps are crucial for effective design 

and documentation of solid waste landfills since landfill plan review in our agency started in the 

mid-1970’s. 
860

The proposed internet web posting of notices and other information may be sufficient for afterthe-fact record-keeping. We do not object to the use of the web, although EPA should be 

cautious to not become dependent on a technology that may become outdated. We recommend 

that the rule require that owner/operators of CCR landfills be required to provide documents 

directly to the State agencies that regulate landfills. Documents could be provided electronically 

and, once received by the State agencies, would be publicly available under State and Federal 

public record rules. 

If EPA intends to proceed with the RCRA Sub D self-implementing alternative, the rule should 

also clearly state that it does not supersede or override authority by State agencies to require a 

review process for plan review of siting, design, construction, waste filling, and closure. 

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-47

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

The proposed notification of the State agencies discussed on pp. 35194- 35195 or the preamble 

proposes that a web site maintained by each utility would be required for concurrent notification 

of States agencies and the public of documentation in the operating record. This is after-the-fact 

reporting of accomplished actions, and is not sufficient for effective plan review and interaction 

prior to changes being made to design, construction, monitoring, recordkeeping, etc. of utility 

CCR disposal facilities. 

We do not object to the posting of information on a web page, as long as cost of maintaining the 

web page is bourn by the utilities and provisions are made to assure that the web page or 

successor technologies will be maintained over the time period for siting, licensing, construction, 

filling, closure, and long-term care, which collectively could be several decades. 

However, a more significant issue for environmental protection is to assure that State agency 

authority will be maintained for plan review, licensing, inspections, construction oversight, 

receipt of monitoring data, etc., without being superseded or compromised by a federal rule. 

Information should not be withheld from State agencies because of perceptions that it is a 

duplication of the web-based notification. In particular, documentation of proposed design, 

achieved construction, monitoring instrumentation and results, closure work, remedial actions, 
861

etc., should be required to be provided directly to the State agency prior to implementation and in 

accordance with State agency timelines. The rule should not imply or state that it is sufficient to 

post information on a web page after the fact as satisfying the legitimate interest State agencies 

have in regulating CCR disposal facilities. 

We have found it essential as a State regulatory agency to perform plan review prior to allowing 

owners to proceed with construction, to inspect facilities during construction, to be able to 

review construction documentation and any proposals for design changes before they are 

implemented, and to receive all monitoring data for retention in and extraction from our 

electronic database systems. It is not sufficient for the State agencies to be notified of such items 

after the fact. 

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

The Agency acknowledges and appreciates the comment, the commenter is referred to Units V 

and IX of the preamble for discussions as to how this subtitle D rule will be implemented and 

enforced. The reader is also referred to Unit IV of the preamble for a discussion relating to the 

decision to regulate CCR under subtitle D of RCRA. In addition, Unit II of the preamble discusses 

EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06865-22

Organization1:Constellation Energy

Commenter1: Charlene Zaruba on behalf of Paul Allen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The use of a publicly accessible internet site should be used in conjunction with the state 

programs for public access to the records. This coordination should be done through the 

individual states so that the information for all the sites in the state is similar. The states can 

provide the site format and linkage to allow the regulators to direct requests for information to 

the proper locations. Through this program the appropriate timing for posting of data and the 

methods for updating information can be established. The federal regulation should provide for 

the listing of the type of data to posted, however the form and timing should be left up to the 

states

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 
862

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06865-4

Organization1:Constellation Energy

Commenter1: Charlene Zaruba on behalf of Paul Allen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.3.2

Comment Excerpt Text:

State Management of Site Data 

EPA's provision for public access to site data should be managed through the state agencies. 

Development of a standard platform for reporting and posting through the states will provide a 

consistent format to the public for all facilities within that state. Minimum standards under the 

federal regulations for what information to be posted would provide the framework to ensure 

equally applicable standards, and thus making easier the reporting burden for generators, such as 

Constellation, with operations in multiple stales. The stale programs could also dictate the timing 

associated with the posting of the information since items such as a permit application can often 

require an approval process by the state before the permit is even considered for public comment 

Additionally, under the existing Subtitle D programs, states have already determined acceptable 

timing on items such as reporting of groundwater data and assessment monitoring. 

Judicious use of internet postings and required data to be posted will enable states and the power 

plant owners to provide consistent reliable data. The institution of sign-in procedures or tracking 

methods for visitors to the web site will help to encourage appropriate use of the data. Although 

Constellation does not currently operate impoundments for CCR disposal, we recognize that 

uncontrolled access to such information such as impoundment design and construction 

specifications may not be in the best interest of the citizenry from a homeland security 

perspective

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06987-34

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
863

Entergy suggests that this information be required to be included in the owner’s/operator’s 

operating record, and persons with legitimate interests in reviewing these data could make a 

written request to the owner/operator or permitting authority. Prior to disclosing this information 

to the requesting party, the owner/operator could coordinate with proper federal and state 

authorities to ensure that the requesting parties are not on any list of interest to federal/state 

homeland security agencies. Only after this screening measure has been completed would the 

information be released. This condition would also allow the owner/operator of the facility and 

federal/state authorities to know the names and identities of all organizations requesting this 

sensitive information on the construction of the impoundment. This additional measure would 

not be overly burdensome and would help protect against the misuse of these data.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-07048-11

Organization1:TransAlta Centralia Generation

Commenter1: Lou Florence

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

4. The proposed requirement for each plant and/or company to maintain a compliance reporting 

website that contains all information required by the regulations is excessive and does not allow 

the ability to keep confidential business information confidential while reporting it properly to 

required agencies. The requirement generates an information technology and regulatory burden 

upon companies that serves no useful function. If information is not required to be reported to 

EPA or State Agencies, then a requirement to post it on company websites is contrary to all 

normal regulatory procedures and exceeds any nOlmal reporting requirements. If the public 

requires access to information required by the regulations to be submitted to the State regulators, 

the State Agency or EPA would be in the best position to make required reports available to the 

public on the agency website just as Toxic Release Inventory data is made available to the public 

by EPA. To address this concern, it may be appropriate for companies to submit required 

regulatory reports to the agency in electronic format.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-07533-31

Organization1:Nebraska Department of Environmental Quality (NDEQ)
864

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

NDEQ’s permit program requires that the facility maintain an operating record at the facility or 

at an alternative location approved by NDEQ. In addition, the permittee is required to notify the 

NDEQ when records have been placed in or added to the operating record. The NDEQ also 

maintains a complete permit file that is accessible to the public. Therefore the use of an internet 

site would be duplicative and unnecessary. If a state implements a permit program with 

requirements for maintaining an operating record, notification requirements to the state, and 

allows access to permit documents then the notification requirements proposed by EPA in this 

rule should be waived.

Response: The commenter is referred to the preamble discussion found in Unit IV that deals 

with the establishment of a publicly accessible internet site by the owner or operator of the 

CCR landfill or surface impoundment for reporting the regulatory requirements of the rule. This 

section also discusses the basis for this requirement as well as other reporting and notification 

requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-24

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

The proposed RCRA subtitle D approach is appropriate to establish national minimum standards. 

The requirements are sufficiently clear and unambiguous. The requirements that owners or 

operators of CCR disposal facilities maintain independently reviewed documentation of 

compliance on publically available websites and provide notice to the state environmental 

agency ensures public access. These requirements establish a substantial basis for both citizens 

and those states without equivalent state requirements to successfully enforce under RCRA 

citizen suit authority. This is much improved over the existing 40 CFR part 257: Criteria for 

Classification of Solid Waste Disposal Facilities and Practices. Unlike the existing 40 CFR part 

257 requirements which are too ambiguous and don’t require the owner or operator to document 

compliance; the proposed RCRA subtitle D rules are actually useful towards developing a citizen 

suit. 

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 
865

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-6

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.1

Comment Excerpt Text:

If the authority to approve state CCR disposal facility permitting programs is not possible, Ohio 

EPA notes that the proposed RCRA subtitle D requirements are clear and unambiguous. The 

requirements that owners or operators of CCR disposal facilities maintain independently 

reviewed documentation of compliance on publically available web sites and provide notice to 

the state environmental agency ensures public access. These requirements establish a substantial 

basis for both citizens and those states without equivalent state requirements to successfully 

enforce under RCRA citizen suit authority. This is much improved over the existing 40 CFR part 

257: Criteria for Classification of Solid Waste Disposal Facilities and Practices. Unlike the 

existing 40 CFR part 257 requirements, which are too ambiguous and don't require the owner or 

operator to document compliance, the proposed RCRA subtitle D rules are actually useful 

towards developing a citizen suit. 

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-08850-14

Organization1:Lansing Board of Water & Light (BWL)

Commenter1: Lansing Board of Water & Light (BWL)

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Posting and Maintenance of Internet Sites Must Be Simplified. Under the Subtitle D option, 

addressing the intranet posting of design criteria for existing surface impoundments, ?257.71(b) 

lists multiple posting requirements. We would propose of these that only one would be of 

significance to the general public -the impoundment is structurally sound. Posting requirements 
866

can be addressed simply through making the certification of the registered professional engineer 

outlined in (b)(13) available on the website.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-08864-7

Organization1:JEA

Commenter1: Athena Mann

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1 4.4.7

Comment Excerpt Text:

Regarding the Subtitle D or D Prime approaches, JEA would point out that the onesize fits all 

national standards being proposed do not allow enough flexibility for utilities to operate 

efficiently, and using corporate web sites as an enforcement tool would seem to be a path toward 

unproductive litigation. More flexibility is needed in the framework of the regulations to allow 

for equally protective but different liner systems, such as dual geomembrane systems, and to 

consider State-approved site specific groundwater monitoring programs that may deviate from 

the proposed standards.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

The commenter is further referred to the discussion in Unit VI regarding alternative liner 

designs for new unit as well as the groundwater and corrective action requirements. 

Comment Number: EPA-HQ-RCRA-2009-0640-09281-5

Organization1:Exelon Power

Commenter1: Victoria K. Will

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

National standards for CCR disposal facilities will also serve the important 
867

function of promoting public confidence in a viable control system. Under EPA’ s Subtitle D 

proposal, the public will have ready access to information that can establish a particular unit’s 

compliance with regulatory requirements. On-line access to such information will allow the 

public to have an unprecedented vantage point as a compliance watchdog. To complement 

regulatory agencies with finite resources and competing priorities affecting decisions to bring 

enforcement actions or undertake administrative processes to obtain relevant compliance-related 

documents, under EPA’s Subtitle D proposal citizens can add to compliance incentives by 

identifying enforcement cases and analyzing compliance issues whenever and wherever they 

have internet access.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-54

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Virginia statute contains provisions that protect trade secret information from being released to 

the public.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-14

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
868

Comment Excerpt Text:

While state and federal regulators and local emergency responders have a need to know certain 

details, the information should be excluded from unsupervised public access due to the potential 

for terrorist activity. This practice is routinely followed by the Federal Energy Regulatory 

Commission. The existing guidelines and practices applied to the hydroelectric energy sector 

should be adopted for the coal fired energy sector which accounts for the vast majority of energy 

production in the nation. 

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-16

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

In effect, EPA proposes to establish a "shadow" reporting system that will exist independently of 

existing (and future) state reporting systems. While Santee Cooper acknowledges EPA's 

concerns about the lack of federal enforcement, and the need for transparency, Santee Cooper 

believes that the proposed public notification requirements are overreaching, and usurp the 

proper role of state reporting and enforcement mechanisms. EPA should eliminate the website 

requirement and should defer to the states' decisions about what should be reported to them, and 

how the public should be granted access to that information.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-09358-18

Organization1:Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Classification: Substantive
869

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.6

Comment Excerpt Text:

8. Provisions for Notifications - WPL completes required compliance activities, analyzes data, 

prepares reports, and provides data and reports to the WDNR. All of these materials are public 

information and have been, and continue to be, accessible to the public. WPL is familiar with the 

public's ability to access this information, especially as agencies adapt to providing such 

information electronically. WPL provides annual certification statements to the WDNR through 

various program requirements. If there are compliance issues that require additional 

communication, WPL self reports these to agency staff via documentation available to the 

general public. WPL objects to the duplicative effort that the EPA is proposing to provide 

information related to CCR management activities on a newly developed company web site. 

EPA should look to the existing WDNR program for guidance on development of a successful 

functioning CCR management program which includes information access by the general public. 

In conclusion, WPL is supportive of the proper management for CCRs and believes that the state 

of Wisconsin has a program which the EPA should examine much closer as a model of a state 

program which could be easily modified to incorporate the objectives of the EPA proposed CCR 

management program. This model would be based on Subtitle D program requirements as 

proposed by EPA with several variations which allow some flexibility for companies in 

designing and operating CCR management units and selecting beneficial use for CCRs based on 

standards that are protective of human health and the environment.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-09728-18

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

h. Providing raw data or compliance items on a company website too easily draws frivilous 

lawsuits from lay person and non-governmental organizations that misinterpret data or 

misunderstand the documentation.

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

referred to the preamble discussion found in Unit IV that deals with the establishment of a 
870

publicly accessible internet site by the owner or operator of the CCR landfill or surface 

impoundment for reporting the regulatory requirements of the rule. This section also discusses 

the basis for this requirement as well as other reporting and notification requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-11733_K-159-4

Organization1:JEA

Commenter1:Matt McClure

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.1.3

Comment Excerpt Text:

Regarding the Subtitle D or D Prime approaches, JEA would point out that the one-size fits all 

national standards being proposed do not allow enough flexibility for utilities to operate 

efficiently, and using corporate web sites as an enforcement tool would seem to be a path toward 

unproductive litigation. More flexibility is needed in the framework of the regulations for equally 

protective but different liner systems, groundwater monitoring programs and zones of discharge, 

and processing practices, such as slurry systems where the CCRs react and solidify within a short 

time of conveyance.

Additionally, the Subtitle D approach should not penalize states like Florida that are already 

regulating the beneficial use of CCRs as well as the disposal of CCRs at new facilities under a 

quasi Subtitle D approach. JEA urges EPA to more carefully consider a statutory path toward a 

regulatory framework tailored to CCRs that follows neither Subtitle C nor D. JEA believes that 

rather than using a somewhat overreaching approach, there would be congressional support to 

provide EPA the authority to approve state programs that meet EPA parameters, allowing States 

like Florida to manage the issue in a way that best serves its citizens, while retaining 

enforcement authority over the states that do not.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The commenter is referred to Unit IV of the preamble for a discussion of EPA’s decision to 

regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV and VI for a 

complete discussion of the beneficial use aspects of the rule. 

Section 4.4.9 - Financial assurance (35210)

Total Number of Submissions: 2

Total Number of Comments: 2
871

Comment Number: EPA-HQ-RCRA-2009-0640-06313-60

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

Regardless of the instrument or avenue for financial assurance, it is essential that the financial 

assurance remain in effect into perpetuity as that is the period during which the disposed CCRs 

pose potential threats to human health and the environment.

Response: As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D 

alternative did not include proposed financial assurance responsibility requirements. EPa 

further stated that any such requirements would be proposed separately. Consistent with the 

proposal, EPA is not promulgating any financial assurance requirement under this subtitle D 

rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06852-10

Organization1:Green Delaware

Commenter1: Alan Muller

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

Financial Assurance 

Is inherently required under Subtitle C but not under D.

Response: As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D 

alternative did not include proposed financial assurance responsibility requirements. EPa 

further stated that any such requirements would be proposed separately. Consistent with the 

proposal, EPA is not promulgating any financial assurance requirement under this subtitle D 

rule.

Section 4.4.9.1 - EPA solicits comment on whether FA should be a key program element 

under a Subtitle D approach (35134, 35148, 35224) and how FA requirements apply to SIs 

that continue to receive CCRs after rule’s effective date (35148-35149)

Total Number of Submissions: 20

Total Number of Comments: 30
872

Comment Number: EPA-HQ-RCRA-2009-0640-03444-39

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As an associated part to this rulemaking process, a separate regulatory subpart could/should be 

incorporated in Parts 257 and 258 to cover financial assurance requirements for closure, postclosure care, and corrective action.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06040-8

Organization1:Longview Power, LLC

Commenter1: Joseph R. Douglass

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA solicited comment on whether financial assurance should be a key element under a Subtitle 

D approach. This issue is not specific to Subtitle D facilities that manage CCR's. This issue 

should be addressed on a broader basis for all Subtitle D facilities, rather -than within a 

rulemaking that addresses certain specific CCR's.

Response: As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D 

alternative did not include proposed financial assurance responsibility requirements. EPa 

further stated that any such requirements would be proposed separately. Consistent with the 

proposal, EPA is not promulgating any financial assurance requirement under this subtitle D 

rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06251-29

Organization1:We Energies

Commenter1: Art Covi
873

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: Financial assurance is already required under Wisconsin Statutes Chapter 289.41 

and Michigan Public Acts 451. We believe that these state administered regulations provide 

appropriate financial assurance and should be included as part of federal standards for state 

programs.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-92

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth suggests EPA to issue financial assurance regulations under Subtitle D 

authority similar to that for MSW landfills.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-95

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott
874

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth believes that owners or operators of surface impoundments closing by one 

deadline, such as five years, should be exempt from bonding while a second group using a latter 

deadline, such as ten years, should be required to fully cover closure and monitoring costs in case 

of insolvency. In each case, the proper closure and post-closure by the owner is assumed.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-26

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5 4.4.7.7 4.4.8.1

Comment Excerpt Text:

CCR should be disposed into solid waste landfills meeting the RCRA Subtitle D design criteria. 

This includes groundwater monitoring, post-closure monitoring and maintenance and financial 

assurance unless the CCR can be used as structural fill. Where CCR can be used as structural fill, 

the fill area should have a synthetic liner, a leachate collection system and groundwater 

monitoring unless the area of the structural fill can be demonstrated to have geologic conditions 

that are protective of both groundwater and surface water within a 1,000-foot radius. Properties 

where CCR has been placed as structural fill should have notification placed in the deed.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-28

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
875

Other Sections: 4.6.1 4.4.8

Comment Excerpt Text:

Landfills receiving CCR that do not meet RCRA Subtitle D requirements should only be allowed 

to continue accepting CCR for two years following the effective date of the Final EPA CCR Rule 

provided certain conditions are met. Those conditions should include a legally binding 

commitment from the landfill owner/operator to properly close the landfill with a RCRA Subtitle 

D landfill cap; closure and post-closure monitoring requirements, including groundwater 

monitoring; and financial assurance sufficient to fund closure and post-closure requirements, as 

well as environmental investigation and remediation in the event that becomes necessary.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-29

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 4.4.5.1 4.4.6 4.4.7.1 4.4.8

Comment Excerpt Text:

New landfills and expansion of existing landfills to be used for the disposal of CCR should be 

required to meet RCRA Subtitle D municipal solid waste and design criteria including geologic 

stability assessment, engineering design criteria, operational standards, groundwater monitoring, 

quarterly inspections, closure (including cap), post-closure monitoring and maintenance, 

financial assurance and notification of CCR disposal on the property deed. A seismic stability 

analysis should be performed as part of the initial site suitability analysis. The landfill or landfill 

expansion should be designed to have a structural stability safety factor of 1.5 and a seismic 

safety factor of 1.5.

Response: The commenter is referred to Unit VI of the preamble for a discussion of the 

technical requirements of the rule and the rationale behind each of the requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-30

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.2 4.4.5.1 4.4.7.4 4.4.8.2

Comment Excerpt Text:

Surface impoundments receiving CCR for treatment or disposal should be regulated from initial 
876

design through completion of post-closure monitoring requirements. For existing CCR surface 

impoundments there should be two categories; (1) CCR waste surface impoundments to be used 

for no more than five additional years from the effective date of the Final EPA CCR Rule, and 

(2) CCR surface impoundments that will be used five years after the effective date of the EPA 

CCR Final Rule.

(1) Regulations for existing CCR surface impoundments to be closed within five years of the 

effective date of the Final EPA CCR Rule should include structural analysis with 

repair/improvements required to meet a dam safety factor of 1.2. Additional requirements should 

include inspections quarterly, installation of groundwater monitoring wells, semiannual 

groundwater monitoring, closure plan, post-closure monitoring and maintenance and financial 

assurance in an amount sufficient to cap the surface impoundment and to perform environmental 

investigation and cleanup should the surface impoundment fail or have releases to groundwater 

and surface water. The CCR surface impoundment owner should be required to submit a 

statement committing to closure of the surface impoundment within five years and acknowledge 

the responsibility to comply with (2) below should the surface impoundment not be closed on 

schedule.

(2) Regulations for existing CCR surface impoundments to be operated for more than five years 

after the effective date of the Final EPA CCR Rule should include a structural analysis with 

repair/improvements required to meet a dam safety factor of 1.5. These surface impoundments 

should be retrofitted with a synthetic liner to prevent failure migration of CCR contaminants into 

ground water. The CCR surface impoundment owner should be required to obtain a solid waste 

processing/disposal permit following the RCRA Subtitle D public participation process. 

Additional recommended requirements are quarterly inspections, installation of groundwater 

monitoring wells, semi-annual groundwater sampling, annual estimation of remaining life, 

closure plan with cap, post-closure monitoring and maintenance plan and financial assurance 

sufficient to perform environmental investigation and clean up should the surface impoundment 

fail or release contaminants to groundwater or surface water.

Response: EPA acknowledges and appreciates this comment. The commenter is referred to 

Unit VI of the preamble for a discussion of the technical requirements of the rule and the 

rationale behind each of the requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-31

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.1 4.4.5.1 4.4.5.2 4.4.7.1 4.4.8.2

Comment Excerpt Text:

New CCR surface impoundments should be permitted following the EPA Subtitle D criteria for 
877

solid waste landfills. The regulations should include:

-Public Notice of intent to construct.

-Demonstration of suitable geologic conditions for construction.

-An engineering design which includes a geologic buffer, synthetic liner, leachate collection 

system, groundwater monitoring system with a minimum of four wells, buffer zones, 

construction with a dam safety factor of 1.5, estimated disposal capacity of the surface 

impoundment, seismic analysis and seismic safety factor of 1.5, closure plan, post-closure 

monitoring and maintenance plan and financial assurance in an amount sufficient to complete 

environmental investigation and cleanup should the surface impoundment fail or have releases to 

groundwater and/or surface water.

-The initial plans should indicate whether the surface impoundment will be used for CCR 

treatment or for waste treatment and CCR disposal.

Response: EPA acknowledges and appreciates this comment. The commenter is referred to 

Unit VI of the preamble for a discussion of the technical requirements of the rule and the 

rationale behind each of the requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-57

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.2 4.4.5.1 4.4.7.4 4.4.8.2

Comment Excerpt Text:

For closing surface impoundments, the CCR generator must make infrastructure changes to 

handle and transport CCR before the surface impoundment can be closed. The structural integrity 

of surface impoundments must be evaluated by an independent professional and the 

owner/operator must be required to repair and improve the structural integrity of the surface 

impoundment.

EPA should promulgate rules that provide two opportunities for existing surface impoundments; 

(1) short term use and closure or (2) long term use with design modifications. Surface 

Impoundments to be used for five years or less after rule promulgation and then closed should be 

required to have a structural integrity analysis with repairs and improvements made providing a 

dam safety factor of 1.2. Semi-annual inspections, groundwater monitoring, financial assurance, 

closure plans, and post closure monitoring and maintenance should be required.

For surface impoundments to be used for longer than five years, all requirements in the 

paragraph above apply as well as a requirement to obtain a permit through the public 

notice/public hearing/public comment process. For this category, the surface impoundment 

should be retrofitted with a synthetic liner.

All new surface impoundments must be permitted similarly to a municipal solid waste landfill.
878

Response: EPA acknowledges and appreciates this comment. The commenter is referred to 

Unit VI of the preamble for a discussion of the technical requirements of the rule and the 

rationale behind each of the requirements.

EPA notes however, as discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the 

subtitle D alternative did not include proposed financial assurance responsibility requirements. 

EPA further stated that any such requirements would be proposed separately. Consistent with 

the proposal, EPA is not promulgating any financial assurance requirement under this subtitle D 

rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-11

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

Financial assurance is needed for the continued maintenance of the facility during and after 

operations. Maintenance would be needed to maintain infrastructure integrity. The facility would 

also need financial assurance for continued environmental monitoring. Other options besides 

retrofitting can be used to mitigate environmental issues that may arise during or after facility 

operations. Financial assurance would need to be substantial enough to implement mitigation 

measures effectively to resolve any environmental issues.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-64

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6
879

Comment Excerpt Text:

Financial assurance is needed by any facility regardless of the regulatory approach. Maintenance

will continue to be needed at facilities after closure.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06838-24

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.3

Comment Excerpt Text:

Minnesota believes financial assurance must be required for closure, postclosure, and 

contingency action for these facilities. Requiring financial assurance should be a key program 

element under the RCRA Subtitle D approach. If facilities cannot be required to maintain 

adequate financial assurance under Subtitle D, funding should be made available, whether 

through CERCLA or other means, to address mismanagement of CCRs. 

Minnesota currently requires all CCR surface impoundments to obtain financial assurance for 

postclosure care prior to closing the facility. Therefore, surface impoundments that cease 

receiving CCRs prior to the effective date of this rule, will have financial assurance.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06866-21

Organization1:Washington State Department of Ecology

Commenter1: Ken Zarker for K. Seiler

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
880

Other Sections: 4.4.9.3

Comment Excerpt Text:

Washington state solid waste rules require financial assurance for limited purpose landfills such 

as the coal ash landfill. These requirements are similar in most respects to RCRA requirements, 

but do not have the enforceability available under a RCRA subtitle C permit. It is important that 

financial assurance is a key program element under a subtitle D approach, as long as workable 

regulatory mechanisms are in place to enforce it.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-73

Organization1:Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Department believes that if a Subtitle D approach is adopted, financial assurance similar to 

those in 40 CFR 258 should be included in the regulation. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-39

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.7 4.4.9.3

Comment Excerpt Text:
881

Ohio EPA supports establishment of CCR financial responsibility requirements for closure and 

post-closure care consistent with what is required for RCRA subtitle D municipal solid waste 

landfills. Ohio EPA suggests that a separate regulatory subpart could/should be incorporated in 

Parts 257 and 258 to cover financial assurance requirements for closure, post-closure care, and 

corrective action. 

Ohio law excludes coal combustion ash from the definition of solid waste leaving 53 CCR 

disposal sites regulated under Ohio’s surface water program. Ohio regulations do not include 

financial responsibility requirements for these 53 CCR sites which includes 42 ash ponds. Ohio 

regulates an additional four CCR landfills disposing of flue gas desulfurization sludge under the 

state solid waste program. Ohio solid waste regulations do require financial assurance for closure 

and post-closure for these four landfills. These four landfills have established financial assurance 

using the corporate test consistent with RCRA subtitle D municipal solid waste landfill 

requirements. 

Ohio EPA has attempted to establish consistent and appropriate regulation of CCR disposal ash 

ponds and landfills as part of a broader 2006 effort to address regulation of industrial disposal 

ponds and landfills. This 2006 effort sought to establish comprehensive design, operational, and 

monitoring requirements for both dry landfills and wet impoundments based upon the 

characteristics of the waste to be disposed. This included financial assurance for closure and 

post-closure care. Ohio EPA’s efforts specific to establishing consistent regulation of CCR 

disposal facilities has been hampered in part by an Ohio law that excludes coal combustion ash 

from the Ohio definition of solid waste. Given this situation, Ohio EPA would support Subtitle D 

development of federal CCR financial responsibility requirements for closure and post-closure 

care applicable in those states that do not have regulatory established CCR financial 

responsibility requirements. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08248-15

Organization1:Institute for Policy Integrity

Commenter1: Jason A. Schwartz

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

If EPA Elects to Regulate CCRs under Subtitle D, a Well-Designed Financial Assurance Option 

Must Be Implemented 
882

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 

(“CERCLA”) allows EPA to require facilities to “establish and maintain evidence of financial 

responsibility consistent with the degree and duration of risk associated with the production, 

transportation, treatment, storage, or disposal of hazardous substances.” [Footnote 68: 42 U.S.C. 

§ 9608(b)(1).] The preamble “solicits comments on whether financial assurance [under 

CERCLA] should be a key program element under a subtitle D approach, if the decision is made 

to promulgate regulations under RCRA subtitle D.” [Footnote 69: 75 Fed. Reg. at 35,224.]

While all evidence points to Subtitle C as the more appropriate vehicle for regulating CCRs, if 

the agency instead elects to use Subtitle D, EPA should then design and implement a financial 

assurance program under CERCLA. As noted in the preamble, this process has already been 

started by the advanced notice of proposed rulemaking on “Identification of Additional Classes 

of Facilities for Development of Financial Responsibility Requirements Under CERCLA Section 

108(b).” [Footnote 70: 75 Fed. Reg. 816.] While likely inferior to regulation under Subtitle C 

(which comes along with its own financial assurance requirements), financial assurance is one 

way to ensure that regulated entities take appropriate actions under Subtitle D. Liability for the 

full social costs of an adverse event is an alternative method for ensuring that the external costs 

are taken into account by the entities that are creating the risk. [Footnote 71: See, e.g., A. 

Mitchell Polinsky & Steven Shavell, The Uneasy Case for Product Liability, 123 HARV. L. 

REV. 1437 (2010).] This comes up most often in the context of tort law. Professors Polinsky and 

Shavell identify three potential benefits of liability: inducing firms to increase safety, improving 

economic decision-making by causing prices to reflect risks, and compensating victims for their 

losses. [Footnote 72: Id. at 1438.] In theory, this method can achieve the same results as a 

regulation which maximizes net social benefits. However, one real-life flaw in this theory is that 

any private party who cannot pay for the full magnitude of the harm will not take adequate steps 

to mitigate overall risks. [Footnote 73: Steven Shavell, Liability for Harm Versus Regulation of 

Safety, 13 J. LEGAL STUD. 357, 360 (1984).] This will occur whenever the potential liability of

a party is higher than the assets of a party. [Footnote 74: Id. at 360-61.] A well-designed 

financial assurance program is one way of guaranteeing that this will not occur. 

However, careful attention should be paid to any regulations on the topic. These regulations 

should be structured so that the right behavior is incentivized. In particular, EPA needs to avoid a 

potential moral hazard problem. If regulated entities are protected from future cleanup costs, they 

may not take appropriate precautions to avoid harmful releases of CCRs

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-11

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman
883

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.4.8 4.2.2 4.2.4

Comment Excerpt Text:

MassDEP recommends that the final EPA regulations include the following critical provisions: 

• National minimum design and performance standards for disposal in landfills that include 

requirements for a composite liner, leachate collection, groundwater monitoring and final closure 

Response: The commenter is referred to Unit VI of the preamble for a discussion of the 

technical regulatory requirements of the rule. 

• Regulation of beneficial uses of CCR, including potential exemption from further regulation for 

certain encapsulated uses of CCR in cement products or similar encapsulated uses in products 

• State or federal compliance assurance for beneficial uses to ensure that such uses will be 

protective of public health and the environment 

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

• Financial assurance for landfill closure and post-closure monitoring and maintenance

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

• Allowance for states to be more stringent than the final EPA rules 

• Clear enforcement authority and permitting authority for states 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08251-42

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:
884

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.3

Comment Excerpt Text:

MassDEP recommends that financial assurance be a part of the Subtitle D approach to ensure 

that landfills are properly closed and maintained after closure during the post-closure period. 

Financial assurance has great value in helping to ensure that a landfill, once no longer in use, 

continues to be properly monitored, capped and closed. By setting aside funds for monitoring 

and closure, the owner/operator has a stake in ensuring that closure and post-closure care are 

properly addressed and the state is ensured that the funds will be available, if needed, for 

monitoring and closure after waste is no longer coming in to the landfill or if the state needs to 

take over the closure and/or monitoring of a site should the owner default. 

MassDEP does not allow financial tests for local governments that own and operate landfills. 

MassDEP requires that funds be set aside in "Enterprise Accounts", a special type of financial 

mechanism established specifically for municipalities. While a local government is not likely 

abandon a landfill, it may argue that it does not have sufficient funds available to ensure closure 

and monitoring of closing landfills. A financial test does nothing to ensure that funds are actually 

available and will be spent to monitor, cap and close a landfill at the end of its useful life. 

MassDEP does not view financial assurance as an "extra" cost; it is one of the essential costs of 

doing business for those who decide to operate a landfill that must be factored in as an annual 

operating expense. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-34

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.2

Comment Excerpt Text:

15 Financial Assurance: 

We believe the states in which we operate CCR disposal units already have appropriate financial 

assurance mechanisms in place, and further federal programs under RCRA-D are not necessary 

for electric utilities. If EPA chooses to pursue new financial assurance requirements for CCRs 

disposal units under RCRA-D, the agency must acknowledge the rate-recovery capability of 

regulated public utilities and provide an re?ray of flexible alternatives to minimize the burden to 

owners, operators and electric customers. RCRA-C is not a workable regulatory framework 
885

under any circumstance. 

We do not believe that financial assurance requirements under CERCLA 108(b) should be a key 

agency focus. We do not believe that financial assurance requirements for inactive CCR 

impoundments is an issue of significant concern for regulated public utilities, given the funding 

sources currently available. State public utility commissions have consistently authorized 

appropriate funding for clean-up or closure of these types of facilities, as well as other legacy 

concerns such as remediation of old manufactured gas plants or demolition of retired power 

plants.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08288-18

Organization1:Oklahoma Department of Environmental Quality

Commenter1: Scott Thompson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

DEQ fully supports incorporating financial assurance criteria, equivalent to the MSWLF criteria, 

for CCR disposal sites under the Subtitle D option.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08787-44

Organization1:Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1:Stephen A. Cobb (Al)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
886

Comment Excerpt Text:

ASTSWMO supports financial assurance as a key program element under the Subtitle D 

approach.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08855-3

Organization1:Colstrip Energy Limited Partnership (CELP)

Commenter1: R. Lee Roberts

Commenter Type: Electric Utility Facility

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

One Size Does Not Fit All as to Financial Assurances 

Not only does the "one size fits all" approach fail to recognize the effect ofthe difference 

between PCU ash and FBC ash on such issues as liner and leachate collection system 

requirements, but it also fails to recognize the difference in the context of financial assurance 

requirements. Apart from the effect of systemic differences between utilities and private energy 

producers and/or qualified facilities, the difference between the effect of landfilling of PCU ash 

and FBC ash is dramatic. The ash disposed of in CELP's landfill had, when last core tested, a 

range of unconfined compressive strength from 3,527 to 3,857 pounds per square inch, which is 

similar to low-strength concrete, and has had zero effect on groundwater under or around the 

landfill in over 20 years of use. To require anyone who can demonstrate that there has been no 

leachate from their landfill for 20 years to post a bond or provide other forms of financial 

assurance for 30 years of post-closure monitoring is perhaps beyond the zone of reasonableness. 

CELP suggests that any rules regarding financial assurance adopted by the EPA take into 

consideration the nature ofthe facility (impoundment vs. landfill, PCU vs. FBC), the nature of the 

ash (pozzolanic v. non-pozzolanic, Proctor Maximum Density Test Results, hydraulic 

conductivity, ash strength, etc.), and the site-specific facts and conditions (history of site, 

monitoring well sampling, results over time, etc.), and result in a flexible approach related to 

site-specific risk indicia. Where an entity can demonstrate that its landfill upon closure will have 

no reasonable probability of adverse effects on health or the environment, financial assurance 

requirements should be waived or minimal in both scope and duration. Where states have been 

authorized by EPA to administer RCRA, the states should also have the ability to establish 

financial assurance requirements on a case-by-case basis in accordance with reasonable 

guidelines established by the EPA. The fact that EPA may not under subtitle D have the ability to 

require states to apply EPA guidelines does not prohibit EPA from suggesting guidelines which 
887

most states could nevertheless be expected to follow.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09282-2

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.2.2

Comment Excerpt Text:

NCDWM proposes that EPA regulate CCRs under Subtitle D of RCRA with modifications to the 

current proposal. Rule changes -- and if necessary statutory changes -- should be made to make 

federally approved state permitting programs the foundation for regulating CCR disposal. EPA 

should also provide financial incentives for states to implement federal criteria through state 

solid waste programs. 

A system of prior approval exists in most, if not all, states that will ensure greater consistency 

across the country than the current self-implementing proposal under Subtitle D. Regulation 

under Subtitle D should embrace the existing state permitting programs. A federal approval role 

would ensure that those permitting programs meet or exceed minimum national criteria for CCR 

disposal. The implementation schedule for a final rule under Subtitle D would need to allow time 

for states to make necessary changes in existing state rules and statutes to incorporate federal 

criteria. 

One element that should be added to regulation under Subtitle D is a requirement for financial 

assurance. Financial assurance for closure, post closure care, and corrective action should be 

included in the final rule as a mechanism to ensure that funds will be provided by owner and 

operators to carry out these activities. 

With an enhanced regulatory system under Subtitle D that recognizes state permitting programs 

and provides financial incentives for states to implement federal criteria, EPA can address the 

risks of disposal of CCRs without risk of damaging existing reuse and recycling markets. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 
888

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09282-21

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should include regulations requiring financial assurance to cover the costs of future 

corrective actions, closure and post-closure care. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-59

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Virginia DEQ has had financial assurance requirements in effect since 1988 for all solid waste 

landfills, including industrial landfills. The financial assurance requirements address closure, 

post-closure care, groundwater monitoring, and corrective action. Due to the similarity of the 

proposed CCR landfills to municipal solid waste and industrial landfills, financial assurance 

provisions should be adopted if the Subtitle D approach is undertaken. Failure to adopt financial 

assurance requirements would not be in the best interests of the states. If a facility was 

abandoned then states could become liable for the costs of closure, post-closure, and/or 

corrective action.

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 
889

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09817-2

Organization1:RT Environmental Services, Inc.

Commenter1:Gary R. Brown, P.E.

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

Recommendations I make are:

-Except in site-specific surface circumstances, where storage is short-term (no more than a year 

or two by cell or segment), the long-term storage and/or disposal of wet CCR material, should be 

banned nationally. 

-Disposal plans should be required within one year, to drain and stabilize current CCR wet/semiwet surface impoundments and dumps, with financial assurance to be placed, for all existing 

surface impoundments, quasi landfill/surface impoundments, and facilities where material will 

remain, near the water table, or in close proximity to surface waters. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09817-4

Organization1:RT Environmental Services, Inc.

Commenter1:Gary R. Brown, P.E.

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5 4.4.5.2.1

Comment Excerpt Text:

Regardless of the classification of the material, it is my opinion that the Agency can take several 

basic steps, as follows: 
890

-Uncovered coal ash materials where there is no written approved "engineering plan", or where 

materials are present in a wet state with a total depth greater than 20 feet should be declared 

"open dumps", unless financial closure is posted, and engineering plans are presented to and 

approved by the state Agency, to convert to dry operation, in a reasonable time period. 

-The states should be given one year to indicate how CCR materials can be managed under their 

waste program(s), as CCRs have been effectively so managed in many states. 

-CR materials do and can present a significant environmental risk, if they are managed in 

inappropriate ways. My opinion is the Agency should force a national review of all individual 

sites, and allow the materials to be managed only in a dry state for disposal and ban disposal 

placement of CCR liquids . All materials placed for disposal must pass the Agency's long-used 

"paint filter" test. 

-This should be can and should be given prompt attention and go forward, in a reasonable 

timeframe, so as not to interfere with or delay the successful beneficial use of CCR materials, 

which can be completed in an environmentally sound manner. Beneficial use regulatory changes, 

if needed, can proceed on a separate track. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-61

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2. Subtitle D Standards Cannot Require Owners and Operators of Coal Ash Disposal 

Facilities to Maintain Financial Assurance 

EPA’s proposed subtitle D standards do not include any requirement for owners or operators of 

coal ash disposal facilities to maintain financial assurance (demonstrate adequate financial 

resources) sufficient to cover closure, post-closure care, necessary clean up and liability from 

facility operations. Yet according to EPA, financial assurance requirements “protect public 

health and the environment by promoting the proper and safe handling of hazardous materials 

and protecting against a liable party defaulting on closure or clean-up obligations.” [Footnote 

344: U.S. EPA, Compliance and Enforcement National Priority: Financial Responsibility Under 

Environmental Laws, 1 (2005).] The absence of financial assurance can “place the public at risk 

because of the potential financial inability to close or clean up the site.” [Footnote 345: Id. at 2.].

Furthermore, according to the EPA, “having the financial wherewithal to perform closure and/or 
891

cleanup is critical to protecting human health and the environment from toxic and hazardous 

waste and substances that are polluting the land, air, and water.” [Footnote 346: Id.]. The EPA 

explains that “financial responsibility requirements achieve this protection by: (1) promoting the 

proper handling of hazardous and toxic waste and substances; (2) ensuring that funds will be 

available to address contamination; (3) preventing the shifting of clean-up costs from the 

responsible party to the taxpayer or other parties; and (4) making facilities and land available to 

the public for reuse.” [Footnote 347: Id.].

EPA considers financial assurance regulations an essential component of its hazardous waste 

compliance program, as evidenced by EPA’s 2003 “Enforcement Alert,” which specifically 

addresses RCRA financial assurance requirements. [Footnote 348: U.S. EPA, Office of 

Regulatory Enforcement, Enforcement Alert, Vol. 6, No. 2 (April 2003).]. The Alert called 

financial assurance requirements a “fundamental compliance obligation” and stated the “failure 

to comply with financial assurance requirements puts human health and the environment at risk.” 

[Footnote 349: Id.].

At least one court has recognized the important role played by financial assurance regulations in 

forcing waste-handling facilities to employ better operation and management practices. In SafetyKleen, Inc., (Pinewood) v. Wyche, the Court held that the South Carolina hazardous waste 

facility financial assurance regulations (equivalent to the federal RCRA regulations) were 

exempt from the federal bankruptcy law’s automatic stay because the requirements were part of 

the State’s “police and regulatory power.” [Footnote 350: 274 F.3d 846, 865 (4th Cir. 2001). The 

Court explained: "The incentive for safety is obvious: the availability and cost of a bond will be 

tied directly to the structural integrity of a facility and the soundness of its day-to-day operations. 

When the EPA promulgated its financial assurance regulations..., it spelled out how the 

regulations would promote environmental protection at active hazardous waste facilities. 

Specifically, the EPA emphasized that the financial assurance requirements would give landfill 

owners and operators “an incentive to locate, design, and operate facilities to minimize closure 

and post-closure costs” and to “improve operating procedures and reduce the risk of accidents.” 

Standards Applicable to Owners and Operators of Hazardous Waste Treatment, Storage, and 

Disposal Facilities; Financial Requirements, 47 Fed. Reg. 15032, 15044-45 (Apr. 7, 1982) ... To 

put it more bluntly, sloppy “design and operating procedures ... are more likely to be avoided” 

with the financial assurance requirements and the resulting incentive to reduce bond costs.]. The 

Court of Appeals found that financial assurance regulations serve the primary purpose of 

deterring environmental misconduct by promoting the safer design and operation of hazardous 

waste facilities. 

Furthermore, in a federal register notice last January, EPA set forth in detail the rationale behind 

imposing financial assurance requirements on the electric utility sector. [Footnote 351: 75 Fed. 

Reg. 816.]. In that notice, EPA acknowledged that the electric power generation, transmission 

and distribution industry was “the sector reporting the second-largest quantity of on-site release 

of hazardous substances.” [Footnote 352: Id. at 821.]. Specifically, EPA noted that 

"this sector reported 161 million pounds of on-site releases of hazardous substances or 

approximately 7.5 percent of the total on-site releases of hazardous substances by U.S. industry 

reporting to TRI. Of this total, 93.8 percent (or approximately 150 million pounds) was released 
892

from fossil fuel electric power generation, primarily to land, with additional on-site releases to 

air and surface water." [Footnote 353: Id. at 829.].

In addition to the enormous volume of releases from coal-fired power plants, EPA pointed to the 

severity of the damage resulting from releases of hazardous substances and the high cost of 

cleanup. EPA described the numerous documented damage cases, including four National 

Priority List sites. [Footnote 354: Chisman Creek, VA; Salem Acres, MA; Lemberger Landfill, 

WI and US Department of Energy Oakridge Reservation, TN.]. The Agency noted 

"The severity of the consequences impacting public health and the environment as a result of 

releases and exposure of hazardous substances posed by the Electric Power Generation, 

Distribution, and Transmission industry is evident in the large costs associated with past and 

estimated future costs necessary to protect public health and the environment through what are 

often extensive and long-term remediation efforts. That is, these facilities release hazardous 

substances which have, in some instances, resulted in contamination that requires long-term 

management and treatment. Remediation of these sites, therefore, has been quite costly. 

[Footnote 355: 75 Fed. Reg. 829-30.].

Despite the Agency’s acknowledgement that financial assurance requirements are essential to 

public health and safety, these requirements are entirely absent from EPA’s subtitle D 

regulations. In fact, EPA asserts that it lacks the authority under subtitle D to require any 

financial assurance.

Finally, it must be noted that the failure to require financial assurance has real-world 

consequences. On January 26, 2010, Perry County Associates, LLC and Perry-Uniontown 

Ventures I, LLC, the permittee and owner of the Arrowhead Landfill, respectively, filed for 

Chapter 11 bankruptcy reorganization. [Footnote 356: In re Perry Uniontown Ventures I, LLC, 

Nos. 10-00275 and 10-00276 (Bankr. S.D. Ala. filed Jan. 26, 2010).]. The Arrowhead Landfill is 

the repository for the 3 million tons of coal ash that was removed from Kingston, Tennessee 

following the 2008 TVA disaster. The Arrowhead Landfill has been the object of citizen suits for 

violation of the Clean Air Act, the Clean Water Act and RCRA as a result of the coal ash 

disposal. [Footnote 357: Thirty-four residents filed suit against the landfill operator, Phill-Con 

Services, LLC. Abrahams v. Phill-Con Services, LLC, No. 2:10-cv-00326 (S.D. Ala. filed June 

25, 2010). Sixty-four residents also filed a state lawsuit for damages and injunctive relief in state 

court. Abrahams v. Phill-Con Services, LLC, No. CV-2010-21 (Perry County Cir. Ct. filed June 

21, 2010), removed to Bankruptcy Court as Abrahams v. Phill-Con Services, LLC (In re Perry 

Uniontown Ventures I, LLC) , Adv. Proc. No. 10-00075 (Bankr. S.D. Ala. filed July 20, 2010). 

See letter from David A. Ludder to Gwendolyn Keyes Fleming, Regional Administrator, U.S. 

Environmental Protection Agency, Region 4 dated October 2010, attached to these comments as 

Appendix L.]. In fact, on July 14, 2010, EPA sent the Arrowhead Landfill a Letter of Concern 

following an inspection of the facility, requesting that the landfill owner take steps to comply 

with numerous Clean Water Act provisions. [Footnote 358: Letter from Christopher L. Plymale, 

Chief, East NPDES Enforcement Section, Water Protection Division, US Environmental 

Protection Agency, Region 4 to Eddie Dorsett, President, Phill-Con Services, July 14, 2010.]. 

The proximity of residences in Uniontown, Alabama to the enormous ash disposal operation at 

the Arrowhead Landfill raises substantial concerns for the health of the community. 
893

In sum, the inability to properly operate and maintain a coal ash disposal facility, including 

executing safe closure and post-closure care, will greatly endanger the residents of Uniontown, 

Alabama, as well hundreds of other communities located near coal ash dumps. Certainly the 

failure of subtitle D standards to require any financial guarantees is a clear violation of the 

standards set forth in section 4004(a) of RCRA. 

Response: The Agency acknowledges and appreciates this comment. As discussed in the 

proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative did not include 

proposed financial assurance responsibility requirements. EPA further stated that any such 

requirements would be proposed separately. Consistent with the proposal, EPA is not 

promulgating any financial assurance requirement under this subtitle D rule.

Section 4.4.9.2 - EPA solicits comment on whether FA requirements under CERCLA 

108(b) should be a key Agency focus for ensuring that funds are available for addressing 

mismanagement of CCRs, should EPA regulate CCR disposal under Subtitle D (35210, 

35224)

Total Number of Submissions: 9

Total Number of Comments: 9

Comment Number: EPA-HQ-RCRA-2009-0640-06251-30

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: Financial responsibility requirements are already implemented and are outlined in 

Wisconsin State Statues Chapters 289 and Michigan Public Acts 451. We do not believe that 

CERCLA is an appropriate instrument for managing financial responsibility.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-94

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth would prefer EPA use Subtitle D authority for closure, post-closure, and 
894

any groundwater corrective action. To require an amount necessary to clean up a Tennessee-like 

spill, around $1 Billion would be difficult to imagine and a real burden on ratepayers. It would 

be more reasonable to use operating funds to keep the dikes in good working order. Regulated 

utilities cannot simply cease operation and default on their obligations. The Kingston ash pond 

incident establishes that such financial responsibility requirements are unnecessary since TVA 

has accepted responsibility and implemented the remediation. For facilities not regulated by the 

Public Service Commission (merchant power plants), a bond for berm stability might be used for 

to provide the necessary financial assurance.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06280-35

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6

Comment Excerpt Text:

The Department requests that EPA clarify the interaction of fmancial assurance requirements 

under Subtitle C and potential impacts to requirements under CERCLA 108(b). Do CERCLA 

108(b) requirements supersede RCRA Subtitle C requirements? Will States implement CERCLA 

108(b) financial assurance requirements?

Response: The Agency acknowledges and appreciates the comment. The specifics of any 

CERCLA 108(b) requirement are unknown at this time.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-34

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

11. Any Financial Assurance Requirements Should Provide Flexibility. EPA has requested 

comment on a variety of issues pertaining to possible financial assurance requirements. 

[Footnote 102: See id. at 35210, 35224.] Southern Company is aware of the advance notice of 
895

proposed rulemaking with respect to financial assurance requirements pursuant to Section 108(b) 

of the Comprehensive Environmental Responsibility, Compensation, and Liability Act 

(“CERCLA”). [Footnote 103: See 75 Fed. Reg. 816 (Jan. 6, 2010). ] Southern Company 

understands EPA’s comments in the preamble to the proposed CCB regulations, including 

especially the lack of specific proposals or detailed discussion, as an indication that EPA intends 

to address financial assurance issues in the context of that rulemaking prior to engaging in any 

in-depth review of the issue in the context of CCBs. 

Southern Company urges EPA to allow flexibility with respect to the instruments or other 

methods to provide adequate financial assurance that may be required in the context of any new 

standards governing CCB facilities. Those requirements should allow for a demonstration of an 

assurance that is adequate and appropriate, taking into account the facility owner’s 

creditworthiness and the financial risk associated with the facility in question. Typical financial 

assurance instruments may include a trust fund, surety bond guaranteeing payment or 

performance, letter of credit, environmental insurance, and corporate financial test for selfinsurance. For CCB facilities, EPA should allow a corporate financial test that allows 

consideration of factors that make some electric utilities a relatively low credit risk, including a 

fixed geographic service territory, state-regulated rates, substantial fixed capital assets, and a 

good credit rating. As EPA has observed in the context of underground storage tanks, “[l]arge, 

financially viable firms can provide evidence of financial responsibility without having to pay 

the costs of procuring financial mechanisms from other parties.” [Footnote 104: EPA, 

FINANCIAL RESPONSIBILITY FOR UNDERGROUND STORAGE TANKS: A 

REFERENCE MANUAL 26 (1999), http://www.epa.gov/OUST/pubs/frustman.pdf.] 

Accordingly, financial assurance requirements adopted by EPA must ensure flexibility, by 

allowing certain public utilities to demonstrate assurance of performance, including through a 

representation of self-insurance where appropriate. 104

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-69

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The discussion on financial assurance on p. 35210 states that the proposed rule does not include 

financial assurance requirements in the Sub D alternative, and is depending on separate rulemaking for adding responsibility requirements under CERCLA 108(b). We do not support the 

concept that financial responsibility under CERCLA should be “a key agency focus” under the 

Sub D alternative.
896

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06866-22

Organization1:Washington State Department of Ecology

Commenter1: Ken Zarker for K. Seiler

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Adopting financial assurance rules under CERCLA would be an acceptable alternative. If EPA 

has sufficient resources to handle this new workload, we believe it may be an appropriate 

framework for protecting taxpayers. However, it is important to note that this approach may 

increase the regulatory burden on some facilities; sites that already provide financial assurance to 

a state for other purposes would have to provide a second financial assurance instrument to EPA. 

In our experience, facilities that split their obligations between a state and EPA have a much 

higher likelihood of making a mistake when it comes to submitting their financial assurance 

documentation. This situation also confuses the issue for regulators; states may believe EPA is 

handling a particular site's financial assurance, while EPA believes the state is handling that site. 

If EPA decides to adopt financial assurance rules under CERCLA, it should prioritize 

identification of dual-obligation facilities and coordinating proper oversight of those facilities 

with the appropriate state regulator.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-21

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA requests comment, at 75FR35210, whether any financial assurance required by a Subtitle D 

rulemaking should be established under CERCLA §108(b). GAEPD unequivocally opposes this 

option, as CERCLA is non-delegable and the state would only have access to and use of the 

funds through EPA. Our prior experience in executing financial assurance mechanisms has 

shown that GAEPD is best positioned to ensure the most efficient use of these funds.

Response: The Agency acknowledges and appreciates the comment. 
897

Comment Number: EPA-HQ-RCRA-2009-0640-08253-34

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1

Comment Excerpt Text:

15 Financial Assurance: 

We believe the states in which we operate CCR disposal units already have appropriate financial 

assurance mechanisms in place, and further federal programs under RCRA-D are not necessary 

for electric utilities. If EPA chooses to pursue new financial assurance requirements for CCRs 

disposal units under RCRA-D, the agency must acknowledge the rate-recovery capability of 

regulated public utilities and provide an re?ray of flexible alternatives to minimize the burden to 

owners, operators and electric customers. RCRA-C is not a workable regulatory framework 

under any circumstance. 

We do not believe that financial assurance requirements under CERCLA 108(b) should be a key 

agency focus. We do not believe that financial assurance requirements for inactive CCR 

impoundments is an issue of significant concern for regulated public utilities, given the funding 

sources currently available. State public utility commissions have consistently authorized 

appropriate funding for clean-up or closure of these types of facilities, as well as other legacy 

concerns such as remediation of old manufactured gas plants or demolition of retired power 

plants.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09273-15

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1: Wayne Gieselman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, while financial responsibility requirements for the electric power generation, 

transmission, and distribution industry under CERCLA § 108(b} should be a key Agency focus 

if CCR is regulated under RCRA Subtitle D, the failure to include adequate financial assurance 

requirements in the proposed Subtitle D regulations must be construed as a deliberate attempt to 

steer this rulemaking toward the Agency's preferred RCRA C approach. 
898

Response: The Agency acknowledges and appreciates the comment. 

Section 4.4.9.3 - EPA solicits comment on FA under existing state waste programs for CCR 

disposal facilities and whether and how Subtitle D regulatory approach might integrate 

with those programs (35210)

Total Number of Submissions: 18

Total Number of Comments: 21

Comment Number: EPA-HQ-RCRA-2009-0640-03444-29

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kansas has had financial assurance requirements in effect for all solid waste landfills, including 

industrial landfills, since 1994. The financial assurance requirements address closure, postclosure care, and corrective action.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06251-31

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: Chapter 289.41 of the Wisconsin Statutes requires landfill owners to provide 

financial assurance during the operating phase and during the long-term care period. Financial 

assurance is provided through standard methods (bonds, deposits, escrow account, irrevocable 

letter of credit) or a net worth method. Michigan Public Acts 451 requires financial assurance in

the form of a bond and the maintenance of a perpetual care fund.

Response: The Agency acknowledges and appreciates the comment. 
899

Comment Number: EPA-HQ-RCRA-2009-0640-06260-159

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth requires financial assurance for special waste facilities, including coal 

combustion by-product landfills, pursuant to 401 KAR 45:080. See 

http://www.lrc.ky.gov/kar/401/045/080.htm for more information. In the rules for special waste, 

including coal combustion residual landfill closure and post-closure bonds, are slightly less 

stringent than our solid rules at 401 KAR 48:310. See 

http://www.lrc.ky.gov/kar/401/048/310.htm for more information. There are two reasons for this 

(1) Utilities are regulated by the Public Service Commission (PSC) which checks financial 

viability as a large part of their mission; and (2) the department is directed by KRS 224.50-760 to 

have a separate set of regulations recognizing distinct differences between solid waste and 

special waste, such as coal combustion residuals:

"(d) The cabinet shall, when promulgating regulations affecting special waste, recognize special 

waste as a separate and distinct indivisible category and shall recognize the distinct differences 

between the category of special wastes and other hazardous wastes and solid wastes as defined in 

KRS 224.01-010(31)(a) and 109.012(9) due to the fact that special wastes have large volume but 

low hazardousness."

For more information on this statute, please see http://www.lrc.ky.gov/KRS/224-

50/CHAPTER.HTM.

Merchant electrical plants, which sell electricity on the open market, are not considered 

"utilities" by the PSC, are regulated under the solid waste rules and would have to file a MSW 

Subtitle D equivalent bond from 401 KAR 48:310.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-93

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Kentucky currently has financial regulations for ash landfills at 401 KAR 45:080 requiring that 
900

funds be available for closure and five years of postclosure care.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06260-96

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.7.6.2

Comment Excerpt Text:

Kentucky has a special waste regulation, at 401 KAR 45:080, that includes coal combustion ash, 

addressing the situation:

"Section 9. Financial Assurance for Publicly Owned Facilities. The owner or operator of a 

publicly owned facility shall provide a budget for the permitting, construction, operation, 

closure, and postclosure care of the facility. The budget shall be revised and submitted annually. 

When elements of the facility's permitting, construction, operation, closure, or postclosure care 

are to be accomplished by contract or agreement, a copy of the contract or agreement shall be 

submitted to the cabinet."

Otherwise, Kentucky could use the municipal financial test.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06315-25

Organization1:Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.3 7.1.2.5

Comment Excerpt Text:

viii. States Fail to Require Financial Assurances for CCR Landfills and Surface 

Impoundments.

Financial assurance for landfills and surface impoundments is a critical safeguard and an 

important tool for ensuring safe waste disposal operations. Fewer than half of the states 

surveyed, however, require financial assurances for all CCR landfills, and only four states 
901

mandate financial assurances for all CCR surface impoundments.

[see original comment for Table 19. Are Financial Assurances Mandatory for CCR 

Landfills?]

[see original comment for Table 20. Are Financial Assurances Mandatory for CCR Surface 

Impoundments?]

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06411-12

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The proposal solicits comment on the financial assurance requirements under existing State 

waste programs, and how the proposed Subtitle D approach for CCR disposal facilities would be 

integrated under those existing programs. In Alabama, we currently have financial assurance 

requirements that are substantially equivalent to those in the federal MSW regulations. However, 

while our statutory authority requires our financial assurance regulations to comply in all 

respects with applicable federal regulations, the Act prohibits the Department from requiring 

financial assurance requirements which are more stringent than the federal requirements. As 

such, since the proposed RCRA Subtitle D option does not include proposed financial 

responsibility requirements, no such requirements would be applicable in Alabama. Should 

future EPA rulemakings be undertaken to put such requirements in place, ADEM would be 

required by State law to compel subject facilities to comply.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-70

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

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
902

Wisconsin, and likely many other States, already has requirements for financial responsibility for 

closure and long-term care that apply to CCR landfills. The proposed rule should be revised to 

acknowledge existing state financial responsibility requirements for CCR disposal facilities 

allow States with such programs to regulate financial responsibility plans for CCR landfills, and 

take advantage of the financial responsibility rules already authorized under the 40 CFR 258 

rules. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06838-24

Organization1:Minnesota Pollution Control Agency (MPCA)

Commenter1: Lisa Mojsiej on behalf of Tim Scherkenbach

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1

Comment Excerpt Text:

Minnesota believes financial assurance must be required for closure, postclosure, and 

contingency action for these facilities. Requiring financial assurance should be a key program 

element under the RCRA Subtitle D approach. If facilities cannot be required to maintain 

adequate financial assurance under Subtitle D, funding should be made available, whether 

through CERCLA or other means, to address mismanagement of CCRs. 

Minnesota currently requires all CCR surface impoundments to obtain financial assurance for 

postclosure care prior to closing the facility. Therefore, surface impoundments that cease 

receiving CCRs prior to the effective date of this rule, will have financial assurance.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06866-21

Organization1:Washington State Department of Ecology

Commenter1: Ken Zarker for K. Seiler

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1

Comment Excerpt Text:

Washington state solid waste rules require financial assurance for limited purpose landfills such 

as the coal ash landfill. These requirements are similar in most respects to RCRA requirements, 

but do not have the enforceability available under a RCRA subtitle C permit. It is important that 
903

financial assurance is a key program element under a subtitle D approach, as long as workable 

regulatory mechanisms are in place to enforce it.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06917-30

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: Tangela Niemann on behalf of Mark R. Vickery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA is also soliciting comments on whether financial assurance should be required for disposal 

of CCRs in surface impoundments and landfills under the Subtitle D option. As stated earlier, 

on-site disposal of nonhazardous industrial solid waste (i.e., CCRs) is exempt from the 

permitting requirements under the Texas rules. Under the Texas rules, financial assurance is not 

required for permit-exempt activities. Therefore, requiring financial assurance for disposal of 

CCRs in surface impoundments and landfills under the Subtitle D option would be inconsistent 

with current Texas regulations.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-9

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1.1 7.1.1.2

Comment Excerpt Text:

The three coal plants and associated CCR landfills that Entergy operates are permitted by the 

Arkansas and Louisiana Departments of Environmental Quality. Both state programs require that 

CCR landfills be constructed at a minimum with a compacted clay liner of at least a two-foot 

thickness with a hydraulic conductivity of no more than 1 x 10-7 cm/sec with a leachate 

collection system or with geosynthetic liners, meet stringent design criteria including floodplain 

and wetland restrictions and fault zone, seismic impact region and unstable area restrictions, 

conform to standardized operational requirements, conduct groundwater monitoring, and comply 

with closure and post-closure criteria as well as provide financial assurance.

Response: The Agency acknowledges and appreciates the comment. 
904

Comment Number: EPA-HQ-RCRA-2009-0640-07533-17

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.2

Comment Excerpt Text:

Title 132, Chapter 8-FINANCIAL ASSURANCE CRITERIA: SOLID WASTE 

MANAGEMENT FACILITIES. Financial assurance is required for all permitted landfills in 

Nebraska, including CCR landfills. Facilities are required to provide a detailed written estimate 

for the cost of hiring a third party to close the largest area of the solid waste disposal area 

requiring a final cover as required in the regulations at any time during the active life in 

accordance with the closure plan. Post-closure costs must also be provided in a detailed estimate 

including the cost of hiring a third party to conduct postclosure care for the solid waste disposal 

area in compliance with the post-closure plan. Allowable mechanisms include trust funds, surety 

bond guaranteeing payment or performance, letter of credit, insurance, corporate financial test, 

local governments financial test, corporate guarantee, local government guarantee, or other stateapproved mechanism. Facilities may also use a combination of mechanisms to satisfy the need 

for financial assurance. In addition to financial assurance for closure and post-closure care 

financial assurance can also be required for investigation or corrective action. The Integrated 

Solid Waste Management Act requires the owner or operator of a landfill to undertake corrective 

action in the event of contamination or a threat of contamination caused by the landfill. Financial 

assurance may be required in an amount determined by the director of NDEQ following public 

notice and hearing.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07533-40

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

NDEQ’s permitting program has implemented the same financial assurance requirements for 

CCR landfills as it has for its approved municipal solid waste landfill permit program. Financial 

assurance is important to ensure money is available to complete closure, postclosure care, and 

corrective action. EPA should give consideration to how state programs are implementing 

financial responsibility requirements and allow flexibility for those programs to continue to be 

implemented.
905

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-07791-13

Organization1:Georgia Department of Natural Resources (GAEPD)

Commenter1: Jim Brown for Mark Smith

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Georgia has adopted the Financial Assurance requirements of 40 CFR 258 Subpart G by 

reference in Rule 391-3-4-.13(2) 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08225-17

Organization1:Minnesota Power (ALLETE)

Commenter1: Michael G. Cashin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Financial assurance. Utilities should continue to provide for financial assurance for long term 

coal ash disposal by providing a corporate guarantee while satisfying a financial test. The State 

of Minnesota is actively assessing facility closure, Financial Assurance Siting requirements. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08226-39

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1 4.7

Comment Excerpt Text:
906

Ohio EPA supports establishment of CCR financial responsibility requirements for closure and 

post-closure care consistent with what is required for RCRA subtitle D municipal solid waste 

landfills. Ohio EPA suggests that a separate regulatory subpart could/should be incorporated in 

Parts 257 and 258 to cover financial assurance requirements for closure, post-closure care, and 

corrective action. 

Ohio law excludes coal combustion ash from the definition of solid waste leaving 53 CCR 

disposal sites regulated under Ohio’s surface water program. Ohio regulations do not include 

financial responsibility requirements for these 53 CCR sites which includes 42 ash ponds. Ohio 

regulates an additional four CCR landfills disposing of flue gas desulfurization sludge under the 

state solid waste program. Ohio solid waste regulations do require financial assurance for closure 

and post-closure for these four landfills. These four landfills have established financial assurance 

using the corporate test consistent with RCRA subtitle D municipal solid waste landfill 

requirements. 

Ohio EPA has attempted to establish consistent and appropriate regulation of CCR disposal ash 

ponds and landfills as part of a broader 2006 effort to address regulation of industrial disposal 

ponds and landfills. This 2006 effort sought to establish comprehensive design, operational, and 

monitoring requirements for both dry landfills and wet impoundments based upon the 

characteristics of the waste to be disposed. This included financial assurance for closure and 

post-closure care. Ohio EPA’s efforts specific to establishing consistent regulation of CCR 

disposal facilities has been hampered in part by an Ohio law that excludes coal combustion ash 

from the Ohio definition of solid waste. Given this situation, Ohio EPA would support Subtitle D 

development of federal CCR financial responsibility requirements for closure and post-closure 

care applicable in those states that do not have regulatory established CCR financial 

responsibility requirements. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08251-42

Organization1:Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.9.1

Comment Excerpt Text:

MassDEP recommends that financial assurance be a part of the Subtitle D approach to ensure 

that landfills are properly closed and maintained after closure during the post-closure period. 

Financial assurance has great value in helping to ensure that a landfill, once no longer in use, 

continues to be properly monitored, capped and closed. By setting aside funds for monitoring 

and closure, the owner/operator has a stake in ensuring that closure and post-closure care are 

properly addressed and the state is ensured that the funds will be available, if needed, for 
907

monitoring and closure after waste is no longer coming in to the landfill or if the state needs to 

take over the closure and/or monitoring of a site should the owner default. 

MassDEP does not allow financial tests for local governments that own and operate landfills. 

MassDEP requires that funds be set aside in "Enterprise Accounts", a special type of financial 

mechanism established specifically for municipalities. While a local government is not likely 

abandon a landfill, it may argue that it does not have sufficient funds available to ensure closure 

and monitoring of closing landfills. A financial test does nothing to ensure that funds are actually 

available and will be spent to monitor, cap and close a landfill at the end of its useful life. 

MassDEP does not view financial assurance as an "extra" cost; it is one of the essential costs of 

doing business for those who decide to operate a landfill that must be factored in as an annual 

operating expense. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08288-19

Organization1:Oklahoma Department of Environmental Quality

Commenter1: Scott Thompson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Oklahoma already requires financial assurance for CCR disposal sites. Financial assurance is an 

effective way to assure adequate funds continue to be available for closure and post-closure 

monitoring of these disposal sites.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-25

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Pg. 35210, Financial Assurance: Arizona’s Aquifer Protection Permit program requires financial 

assurance for closure and post-closure care of CCR surface impoundments and landfills. This is 

reviewed with the permit application; however, it is only re-visited during a major permit 

modification. There is no regular review of financial assurance adequacy required in APP rules.
908

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09431-13

Organization1:Otter Tail Power Company

Commenter1: Farren Richard

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1 7.1.1.2

Comment Excerpt Text:

In addition to the MPCA, local city and county departments are also are involved with the siting 

of the Hoot Lake Plant site. Similar to the MPCA, the North Dakota Department of Health and 

the South Dakota Department of Environment and Natural Resources oversee the solid waste 

sites at Coyote Station and Big Stone Plant, respectively. Again, the States are involved with the 

landfill design and construction requirements, permitting, overseeing operations, ground water 

monitoring data review, financial assurance review (North Dakota), and they issue final covering 

and post closure care requirements.

Response: The Agency acknowledges and appreciates the comment. 

Section 4.5.1 - Subtitle D Prime option: EPA solicits comment on approach/potential 

modification proposed under Subtitle D prime option (35149, 35210); EPA solicits 

comment on whether Subtitle D prime option is protective of HHE (35223)

Total Number of Submissions: 153

Total Number of Comments: 192

Comment Number: EPA-HQ-RCRA-2009-0640-06128-15

Organization1:Owensboro Municipal Utilities

Commenter1: Kevin D. Frizzell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option would not involve a scheduled phase-out or retrofit of surface 

impoundments, but would allow them to continue operating, provided that these units meet 

applicable groundwater monitoring standards to ensure they do not pose a risk to the 

environment and human health. All existing surface impoundments should not be subject to an 

arbitrary requirement to retrofit regardless of their environmental performance. 

The Subtitle D Prime option would allow facilities such as OMUs' Elmer Smith Station (ESS) to 

continue operations with more cost affordable measures that would still be protective of human 

health and the environment for these nonhazardous materials. ESS does not have large on-site 

ash ponds or landfills which are used for ultimate disposal of CCRs. Rather, coal ash is managed 
909

in a series of small settling impoundments such that the CCRs are continually removed from 

these impoundments. The CCRs are then utilized in a variety of beneficial reuse applications. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06129-8

Organization1:City Utilities of Springfield, MO

Commenter1: David M. Fraley

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Not all CCRs pose the range of environmental risks addressed by this proposal. In particular, we 

are assured, as EPA also suggests, that the hazardous constituents in CCRs can be sequestered 

and rendered environmentally inert in a cementitious or glassy matrix. Accordingly, we feel that 

CCRs inherently characterized by such a matrix could be exposed to waterborne management 

practices with no adverse environmental impacts. This would be particularly true of bottom ash 

and boiler slag. We specifically would reserve judgment on whether flyash, FGD waste, and 

other CCR streams are or could be rendered inert during wet handling. However, we submit that 

bottom ash, boiler slag and other glass-like CCRs are sufficiently inert that they could continue 

to be managed by wet methods under a restricted “D prime” alternative. This would obviously 

require a wet impoundment that meets safety and stability requirements. We feel strongly that 

the CCR rule should afford the opportunity for continued wet management of these inert matrix 

materials.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06198-2

Organization1:Ameren Corporation

Commenter1: Paul R. Pike

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
910

I. Subtitle D Prime 

The Subtitle D Prime option, with the proper adjustments, will allow EPA to establish a robust 

and environmentally protective program for coal ash disposal units without crippling coal ash 

beneficial use and imposing unnecessary regulatory costs on power plants; threatening jobs, 

existing agreements, power reliability, and increasing electricity costs. While some of our 

suggested modifications to the Subtitle D Prime proposal will likely necessitate issuance of a 

supplemental proposal, this additional procedural step is worthwhile because it will help ensure 

promulgation of an environmentally protective regulatory program for CCRs consistent with the 

rulemaking record and the dictates of the Bevill Amendment. 

Ameren supports the Subtitle D Prime option because it would ensure the development of fully 

protective controls for CCRs in an effective and practical manner. It would include all the 

elements of the primary "Subtitle D" option with the exception that it "would not require the 

closure or installation of composite liners in existing surface impoundments; rather, these surface 

impoundments could continue to operate for the remainder of their useful life." 75 Fed. Reg. at 

35210. 

As EPA itself acknowledges, many of the Subtitle D option's substantive requirements, including 

those under Subtitle D Prime, are the same as those under the Subtitle C option, including the 

technical and design standards for CCR liner systems, groundwater monitoring and associated 

corrective action, and surface impoundment integrity standards. 75 Fed. Reg. at 35193. In fact, 

many of the provisions under the Subtitle D option "either correspond to the provisions EPA is 

proposing to establish for RCRA subtitle C, or are modeled after existing Subtitle C 

requirements." (d. In addition to borrowing from key elements of RCRNs existing standards for 

municipal solid waste landfills ("MSWLFs") under 40 C.F.R. Part 258 - which the Agency found 

"would be expected to address the risks presented by the constituents in CCR wastes" – the 

proposed Subtitle D rules also considered and incorporated some of the self-implementing 

elements of RCRA's hazardous waste interim status requirements into the Subtitle D proposal. 

Id. 

Given that the Subtitle D Prime's substantive controls are patterned in large part on the proposed 

Subtitle C controls, the overall level of protection to human health and the environment are 

equivalent under both options. As EPA explains in describing the protective nature of the 

Subtitle D option, the Agency has historically interpreted both the Subtitle C and Subtitle D 

statutory provisions as requiring it "to establish a comparable level of protection, corresponding 

to an acceptable risk level ranging between 1 x 10" to 1 x 10' .. and that EPA can establish even 

more stringent Subtitle D standards where it deems such regulations are appropriate. (d. 

Therefore, the Subtitle D Prime option would provide the same level of protection to human 

hea~h and the environment as the Subtitle C option without the corresponding adverse impacts 

of the Subtitle C approach. 

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does 

not require all existing surface impoundments to close if they are operating in a manner that is 

fully protective of human health and the environment. This option does not include the automatic 

requirement to dredge and line all existing CCR surface impoundments within five years of the 
911

effective date of the regulations, or close these impoundments. Id. at 35244; proposed 40 C.F.R. 

§ 257.71 (g). Under the Subtitle D Prime option, existing CCR surface impoundments would 

continue to be subject to groundwater monitoring and corrective action requirements so that any 

threats from these units during their operating life would be detected and appropriate corrective 

action would be taken. We agree that CCR disposal units that are not fully protective must either 

take appropriate corrective action or close; however, there are many CCR surface impoundments 

which are perfectly safe. There is no reason why these units should not be allowed to continue 

operating.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06203-1

Organization1:Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As stated at an EPA public hearing on this proposal in Denver, Colorado on September 2, 2010, 

[FN 1: Testimony presented by Scott Davis, Director of Environmental Policy & Programs on 

behalf of Arizona Public Service Company attached to comments.] APS supports the 

development of federal regulations for CCRs under RCRA's Subtitle D non-hazardous waste 

program, and believes the Subtitle D "Prime" option is the best regulatory approach. APS is in 

full agreement with the position of the Utility Solid Waste Activities Group ("USWAG") that the 

question is not whether EPA should develop regulations for CCRs, but rather how best to 

regulate CCRs under a federal program. As detailed in comments submitted by USWAG, which 

APS supports in full, the Subtitle D framework provides the appropriate legal structure under 

which EPA may develop federal regulations for CCRs, and the Subtitle D "Prime" option, with 

appropriate adjustments, offers the best path forward. Under this option, EPA would not reverse 

its final 2000 Regulatory Determination for CCRs, but instead would follow through on that 

determination by promulgating federal non-hazardous waste rules for the disposal of CCRs. 

Under this approach, CCRs would remain classified as non-hazardous wastes, and EPA would 

develop Subtitle D national regulations for CCR disposal facilities enforceable by the states and 

by citizens under RCRA's citizen suit provision. The Agency also would retain its imminent and 

substantial endangerment authority to take action against any CCR units that posed a risk to 

human health and the environment. Thus, not only would this approach create an 

environmentally protective program for CCR disposal units, it would do so without crippling 

beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and 

increasing electricity costs.
912

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06251-5

Organization1:We Energies

Commenter1: Art Covi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

COMMENT: EPA acknowledges that the substantive requirements for CCR disposal units under 

a Subtitle D approach would be virtually identical to those that are proposed under the Subtitle C 

hazardous waste option, ensuring the environmentally sound management of CCRs, without 

adversely impacting CCR beneficial use and unnecessarily regulating power plant operations that 

are not the focus of EPA’s concern with CCR disposal practices. 

Nonetheless, the Subtitle D option requires improvements, including allowing for administration 

of the federal Subtitle D rules for CCRs by state regulatory programs to avoid duplication of 

federal and state efforts, as called for by Congress in the Bevill Amendment. This would also 

allow states to enforce compliance through a traditional permitting framework. In addition, the 

accelerated timeframes for the closure of certain CCR disposal units must be extended to more 

realistically reflect the schedules and logistical and operational challenges for closing large units. 

While the Subtitle D Prime option requires the above modifications, the RCRA Subtitle D 

framework provides the appropriate platform for ensuring the environmentally sound 

management of CCRs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-82

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:
913

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.4 5.6.5 3.8.1

Comment Excerpt Text:

Several places in the proposed rule refer to the "useful life" of surface impoundments. The rule 

does not appear to acknowledge that dredging of CCRs from the ponds is a routine maintenance 

action undertaken by the operators. Under the proposed wording, if the operators dredge 

annually and remove CCRs making more space, the useful life of ponds is virtually unlimited 

unless definite dates are set in by the rule. Continued, indefinite use of the ponds in an unlined 

status does not accomplish the same environmental protection goals. A specific deadline should 

be established to close or install composite liners on existing impoundments. Subtitle D Prime 

should not be considered, but rather Subtitle D with consistent controls on both landfills and 

ponds with enhanced monitoring.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06295-7

Organization1:Portland General Electric Company (PGE)

Commenter1:James J. Piro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

PGE asks EPA to recognize the circumstances of coal units that are scheduled to permanently 

cease coal operations. The remaining useful life of a coal unit and associated CCR disposal units 

should be considered in decisions about new requirements for existing sources. Existing CCR 

disposal units should be allowed to continue operating without major retrofits provided they 

meet applicable groundwater monitoring standards to ensure performance in an environmentally 

sound manner. This is a sensible approach especially when a source has agreed to a shutdown 

date. Adding significant capital investment in existing facilities for regulatory compliance 

purposes could have the effect of forcing coal units to run over longer time periods in order to 

recover costs associated with new environmental controls.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
914

Comment Number: EPA-HQ-RCRA-2009-0640-06296-4

Organization1:Alabama Coal Association (ACA)

Commenter1:David Roberson

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Should EPA deem new federal regulation to be necessary, EPA should proposed standards under 

its solid waste authority under RCRA Subtitle D but allow existing facilities to remain in 

operation, which EPA described as the Subtitle “D Prime” option. A modified D Prime approach 

is much more sensible and practical than EPA’s proposed regulations under Subtitle C or Subtitle 

D. The “D Prime” approach includes safeguards that will ensures that existing CCB facilities are 

safe and effective by imposing new monitoring and inspection requirements. That will allow a 

confirmation that the facilities are operating as designed, without adverse environmental 

consequences and threats to safety.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06297-1

Organization1:Business Council of Alabama (BCA)

Commenter1:David Roberson

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Federal Regulation Is Unnecessary, But the “D Prime” Option Is the Best among EPA’s 

Proposals. 

Direct federal regulation of CCBs is unnecessary. Coal ash and other CCBs consistently pass 

EPA’s own test procedures to determine toxicity; in other words, available scientific evidence 

shows that CCBs are not hazardous for purposes of RCRA Subtitle C. CCB management and 

disposal is straightforward, and states are fully able to oversee CCBs to the extent the states may 

deem appropriate. 

Nevertheless, if EPA determines that federal action is necessary, BCA urges EPA to utilize its 

solid waste regulatory authority pursuant to Subtitle D and in a manner that allows existing CCB 

impoundments to remain in operation, in a fashion similar to EPA’s so-called “D Prime” option. 

Unlike EPA’s proposed Subtitle D regulations, any new standards for CCB management and 
915

disposal should flexible and allow qualified experts to approve facilities and operations that 

ensure safety and environmental protection in a manner that accounts for site-specific conditions 

and operational realities. Performance-based standards will allow the regulated community to 

achieve the desired margin of safety in a more cost-effective manner. On the other hand, to 

impose centrally dictated, inflexible standards would result in increased costs that do not 

effectively improve environmental protection, but which will drive up rates for utility customers.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-56

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.5

Comment Excerpt Text:

The opportunity to provide some amount of time to use existing surface impoundments is worthy 

of consideration. However, it is important that existing surface impoundments be either closed or 

upgraded to new standards if they will be operated for a period of years.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-16

Organization1:MidAmerican Energy Holdings Company (MidAmerican)

Commenter1: Cathy S. Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should adopt Subtitle D “Prime” Approach With Clarification/Modification

As highlighted earlier in our comments, MidAmerican supports the development of federal 

regulations for CCR as a non-hazardous waste under a RCRA Subtitle D “Prime” rule. The 
916

rulemaking record from the past twenty years, which has included two reports to Congress and 

two final Regulatory Determinations under the Bevill Amendment has consistently found that the 

Subtitle D approach was the appropriate course for the regulation of CCR. Most recently in its 

2000 CCR Regulatory Determination, the EPA reaffirmed the appropriateness of the Subtitle D 

option, concluding that the Subtitle D regulations are the most appropriate mechanism for 

ensuring that CCR disposed in landfills and surface impoundments are managed safely. [FN 22: 

See 58 Federal Register at 42466.] In addition to the fact that CCR rarely exhibits hazardous 

waste characteristics, EPA explained that the decisive factors in reaching its final determination 

were: (1) improving trends in CCR disposal and utilization practices, (2) the current and 

potential utilization of CCR (i.e. beneficial use), and (3) Congress’ admonition in the Bevill 

Amendment against duplication of efforts by other federal and state agencies. [FN 23: Second 

Report to Congress at 3-5.] EPA’s focus on CCR disposal is understandable in the wake of the 

TVA incident. However, the TVA incident should not serve as the basis for an unjustified 

change in position without any new evidence. Nor should EPA respond blindly to 

unsubstantiated and often inaccurate claims of so-called damage cases.

Not only has there been consistent support in the previous record for Subtitle D regulation, over 

the past year (mid-2009 to present), the overwhelming majority of the states, municipal and local 

governments, over two-dozen state environmental protection agencies, state Departments of 

Transportation, other federal agencies, including the Department of Energy, have all expressed 

their support for regulation of CCR as a non-hazardous waste under RCRA Subtitle D. Given the 

breadth and depth of this federal, state, and local support for the Subtitle D option, the EPA’s 

adoption and promulgation of a Subtitle C approach would run contra to the Bevill Amendment’s 

directive that any federal regulatory program for CCR account for the views of other federal 

agencies and the states. [FN 24: See RCRA Section 8002(n).]

A Subtitle D “Prime” regulatory approach would be fully protective of human health and the 

environment. The D “Prime” approach would include virtually of the same elements of the 

Subtitle D program with the exception that it would not require the closure or installation of 

composite liners in existing surface impoundments. Instead, these surface impoundments could 

continue to operate for the remainder of their useful life. Further, it is important to note that 

almost all of the technical and design requirements are the same under the Subtitle C or D 

programs (including D Prime). Specifically, all of the technical and design standards for CCR 

liner systems, groundwater monitoring and corrective action, and surface impoundment integrity 

standards are identical for both regulatory options.

One element of the Subtitle D Prime option that is different than under the Subtitle C and D 

programs is the requirement to retrofit and or close all existing CCR surface impoundments. 

MidAmerican submits that it is not appropriate to require the upgrade and or closure of existing 

CCR surface impoundments which operate in a manner that is protective of human health and 

the environment. Under the Subtitle D Prime approach, existing CCR surface impoundments 

would continue to be subject to groundwater monitoring requirements. MidAmerican submits 

that the EPA and/or state regulatory agencies should have the discretion to require closure and/or 

upgrades of certain surface impoundments that are not protective of public health and the 
917

environment.

One of EPA’s stated concerns with the Subtitle D and D Prime options is the lack of direct 

federal enforceability to ensure that the individual states fully develop, implement and enforce a 

program. MidAmerican submits that the EPA has the authority to overcome any programmatic 

issues at the state level to develop Subtitle D program rules that are directly administered by the 

individual states with direct EPA enforcement authority. Specifically, the EPA can utilize the 

same combination of RCRA statutory authorities found under sections 4010(c) and 4005 (c) for 

the establishment of controls for CCR disposal units that it employed in promulgating the 

federally enforceable Subtitle D rules for municipal solid waste landfills. The combination of 

these two Subtitle D provisions enables the EPA to promulgate non-hazardous waste rules for 

CCR that can be directly administered through state permitting programs and directly enforced 

by EPA if the individual states fail to adequately implement federal rules. EPA’s concern that it 

cannot require states to implement Subtitle D controls is misplaced. RCRA allows EPA to 

promulgate Subtitle D rules that can be directly administered through state permitting programs 

and backed by direct EPA enforcement powers in states that fail to implement the program. 

These rules would also be directly enforceable by the public under RCRA’s citizen suit 

provisions. [FN 25: See RCRA Section 7002.] EPA would also retain its “imminent and 

substantial endangerment authority” under RCRA to take action against any CCR unit that posed 

a risk to human health and the environment. [FN 26: Under RCRA Section 3008.]

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-2

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

II. FEDERAL REGULATION OF CCBS IS NOT WARRANTED OR NECESSARY; 

HOWEVER, AMONG EPA’S REGULATORY OPTIONS, A MODIFIED SUBTITLE “D 

PRIME” APPROACH IS MOST APPROPRIATE. 

Southern Company believes federal regulation of CCB management and disposal practices is not 

warranted. The incident that led to this rulemaking procedure occurred at a federally owned 

facility, and EPA’s inspections of ash ponds around the country are demonstrating that the 
918

Kingston incident was an aberration and not typical of electric utility practices, as discussed 

further below at Part V.A. However, Southern Company has carefully reviewed EPA’s 

regulatory proposals under RCRA Subtitle C and RCRA Subtitle D, as well as the so-called D 

Prime option. Among these, a D Prime approach, subject to certain modifications, is most 

appropriate. 

A. A Modified “D Prime” Approach Is More Effective and Practical Than the Subtitle C and 

Subtitle D Proposals. 

A modified Subtitle D Prime approach, [Footnote 6: The Subtitle “D Prime” Option contains the 

same elements of the primary “Subtitle D” Option with the exception that Subtitle “D Prime” 

“would not require the closure or installation of composite liners in existing surface 

impoundments; rather, these impoundments could continue to operate for the remainder of their 

useful life.” 75 Fed. Reg. at 35210.] properly developed with additional state regulatory 

oversight provisions, is the best among EPA’s three approaches for the regulation of CCB 

material. This D Prime approach would be fully protective of human health and the environment, 

with the least duplication [Footnote 7: See Congress’ admonition in the Bevill Amendment 

against duplication of efforts by other federal and state agencies. 65 Fed. Reg. 32214, 32215, 

32221-22 (May 22, 2000); RCRA 8002(n), 42 U.S.C. 6982(n).] or preclusion of ongoing state 

and private efforts to manage CCBs. All CCB facilities would be subject to groundwater 

monitoring, and new CCB facilities and certain expansions would be subject to Subtitle D 

standards comparable to those that apply to Subtitle D facilities today. Existing facilities would 

be required to demonstrate that they are performing safely and effectively through a combination 

of measures, including groundwater monitoring. 

In comparison to both the Subtitle D and Subtitle C proposals, a modified Subtitle D Prime 

approach would allow for more flexible, practical, and effective management of CCB surface 

impoundments (including alternative corrective action, closure, and postclosure care options) for 

the remainder of their useful lives. In addition, a modified Subtitle D Prime approach would not 

include the automatic requirement to either dredge and line all existing CCB surface 

impoundments within five years of the effective date of the regulations or close the 

impoundments. [Footnote 8: See 75 Fed. Reg. at 35244 (proposed 40 C.F.R. 257.71(g)). ] It 

makes no sense to upgrade and/or close existing CCB surface impoundments operating in a 

manner that is fully protective of human health and the environment. 

1. A Modified D Prime Approach Would Be Fully Protective of Safety, Human Health, and the 

Environment. 

The Subtitle D Prime approach, subject to additional suggestions provided in these comments, 

provides essentially the same level of protection of safety, human health, and the environment as 

EPA’s Subtitle C and Subtitle D proposals. [Footnote 9: See 75 Fed. Reg. at 35210 (requesting 

comment on the efficacy of a “D Prime” approach).] Groundwater monitoring would allow a 

determination, based on facts gathered at the site—as opposed to unfounded assumptions based 

on a lack of information—of whether the facilities are performing up to expectations. Facilities 

working as designed, without adverse environmental impacts, would continue to operate. Only 

those facilities that fail to demonstrate an acceptable level of performance would be subject to 
919

upgrades or closure. 

EPA’s proposal appears to be based on a false assumption that the absence of a liner necessarily 

results in groundwater contamination at facilities that were built before it was a standard practice 

to include liners in the original design and construction. However, depending on site-specific 

factors such as the hydrogeologic setting and proximity to potential receptors, an unlined facility 

may pose no greater risk than a lined facility. For example, clayey material under the facility—

which can occur naturally depending on the local geology—can prevent migration of 

contaminants due to lower hydraulic conductivity and natural attenuation capacity of the 

material. The fact that such a layer may occur naturally does not make it less effective. It is also 

possible that potential receptors may not be affected by contamination from an unlined facility 

because of the distance between the receptors and the facility. 

Any new regulations should allow for a demonstration that existing impoundments are protective 

of human health and the environment, even if they were not designed and constructed in a 

manner that coincides with new standards for new facilities that ultimately take effect pursuant to 

this rulemaking. Evidence that could potentially be used for such a demonstration includes: (1) 

groundwater monitoring results; (2) water-supply well surveys to demonstrate distance to the 

nearest receptor; (3) definition of local hydrogeology (e.g., hydraulic conductivity, presence of 

confining beds, etc.); (4) natural attenuation capacity of the geologic media; and (5) risk 

assessment. The techniques available to identify and consider these kinds of issues are well 

established and within the mainstream of existing scientific and commercial practices. 

Any new regulations should also allow for the option to make physical modifications to a CCB 

management facility or targeted chemical applications to ensure protection of human health and 

the environment. For example, at one Southern Company facility, a slurry wall was constructed 

through the ash pond dike for its entire length and tied into a subsurface confining bed with low 

hydraulic conductivity. Construction of the slurry wall effectively enclosed the ash pond, 

preventing groundwater contamination. Moreover, as discussed further at Part II.B.9 below, 

chemical fixation agents may be added to the ash, or to soil surrounding the facility, which 

prevent or impede contaminant migration. 

Finally, Southern Company already applies an inspection regimen at existing facilities to monitor 

any visible indicators of issues that may have structural stability implications. Southern 

Company’s comments on structural integrity issues are provided below at Part V.

The costs and benefits of this approach must be compared to those associated with EPA’s 

Subtitle C and D proposals, which would require closing or retrofitting most existing facilities 

and converting wet impoundments to dry landfills. Because a D Prime approach would allow 

only those facilities that are safe and effective to remain in operation, the benefits to human 

health and the environment are virtually identical. However, EPA’s Subtitle C and D proposals 

would be associated with staggering costs. Requiring all facilities nationwide to close or upgrade 

at the same time, regardless of site-specific risks and performance, adds additional unnecessary 

costs by creating artificial short-term demand for existing equipment and qualified personnel. 

Given that EPA’s Subtitle D Prime approach would provide a comparable level of protection, the 

huge incremental expense of EPA’s Subtitle C and D proposals cannot be justified. 
920

2. The States and Industry Are Prepared to Implement a Safe and Effective Program. 

According to the preamble to the proposed rules, EPA “would implement similar technical 

controls under RCRA subtitle C or D.” [Footnote 10: Id. at 35133.] Disposal facilities under a 

Subtitle C and Subtitle D program are technologically equivalent. However, the roles of EPA and 

the states are very different. [Footnote 11: A Subtitle C program would impose significant 

additional, facility-wide operational requirements, as discussed further in Part III of these 

comments. As explained there, the additional obligations would be difficult and expensive to 

administer, and they are unnecessary for purposes of safety and environmental protection.] 

EPA’s relatively limited role under Subtitle D appears to be EPA’s primary objection to the use 

of its Subtitle D authority. 

EPA’s preamble includes language that suggests an attempt to undermine state and industry 

competence. EPA regards “the adequacy of State programs” as “a central issue” as to the 

decision of whether to implement a program under Subtitle C or Subtitle D. [Footnote 12: 75 

Fed. Reg. at 35133; see also id. at 35152 (“The adequacy of state regulation is one of the key 

issues before the Agency. . . .”).] According to EPA, “the Agency is reticent to establish a 

regulatory program without any federal oversight.” [Footnote 13: Id. at 35157.] EPA assumes—

without providing supporting evidence—that under a Subtitle D program, there will be “less 

compliance” than under a Subtitle C program, [Footnote 14: Id. at 35159.] by which EPA must 

mean that it is capable of achieving a higher degree of compliance than state agencies. According 

to EPA, the fact that Subtitle D does not provide EPA direct permitting and enforcement 

authority “complicates the Agency’s ability to develop regulations that can be effectively 

implemented and tailored to individual site conditions.” [Footnote 15: Id. at 35160 (emphasis 

added).] The implication is unavoidable: A state effort would be ineffective. EPA implies that it 

“cannot rely” on the Subtitle D mechanisms, because “[u]nder these provisions of RCRA, EPA 

lacks the authority to require state permits, approve state programs, and to enforce the criteria.” 

[Footnote 16: Id. at 35194.] 

For EPA, the choice between Subtitle C and Subtitle D has little to do with the properties of 

CCBs, or whether CCBs are actually “hazardous” for regulatory purposes. As EPA has 

acknowledged, CCBs routinely pass EPA’s own Toxicity Characteristic Leaching Procedure 

(“TCLP”); [Footnote 17: 65 Fed. Reg. 32214, 32230 (May 22, 2000) (“We further identified that 

leachate from various large volume wastes generated at coal combustion facilities infrequently 

exceed the hazardous waste toxicity characteristic, for one or more of the following metals: 

arsenic, cadmium, chromium, lead, and mercury.”) (emphasis added).] that is, they do not exhibit 

the toxicity characteristic of “hazardous waste” that, if present, would subject CCBs to regulation 

under RCRA Subtitle C. Further, CCBs are produced in very large quantities, to an extent that is 

entirely out of proportion to current levels of annual generation of truly hazardous waste. Placing 

CCBs in the Subtitle C waste stream would overwhelm the existing Subtitle C infrastructure and 

place unreasonable administrative burdens on state agencies. CCBs are also relatively 

homogenous, which actually makes groundwater monitoring and other management issues more 

straightforward than is the case for Subtitle C landfills and even the typical Subtitle D municipal 

solid waste landfills (“MSWLFs”). 
921

Rather, for EPA, this is an issue of control. EPA appears to have drawn the conclusion that if 

Subtitle D does not provide EPA enough authority to regulate CCB management and disposal as 

tightly as it prefers, then EPA must justify a Subtitle C program, regardless of whether a Subtitle 

C program makes sense and regardless of any other consideration. That reasoning is wrong, for 

two key reasons. First, EPA’s position rests on a mischaracterization of the efficacy of state 

programs. Second, EPA ignores aspects of its regulatory authority under Subtitle D

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-49

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

K. A Subtitle D Prime Approach Provides Structural Protections Comparable to Subtitle C and 

More Appropriate Operational Criteria Than Subtitle C. 

Many of the substantive requirements under the Subtitle D proposal or a D Prime approach 

would be the same as those under the Subtitle C proposal, including the technical and design 

standards for CCB liner systems, groundwater monitoring and associated corrective action, and 

surface impoundment integrity standards. [Footnote 162: Id. at 35193.] 

EPA has historically interpreted both the Subtitle C and Subtitle D statutory provisions as 

requiring EPA “to establish a comparable level of protection, corresponding to an acceptable risk 

level ranging between 1 x 10-4 to 1 x 10-6” and that EPA can establish even more stringent 

Subtitle D standards “where it deems such more stringent regulations are appropriate.” [Footnote 

163: Id] A Subtitle D Prime approach would provide the same level of protection to human 

health and the environment as the Subtitle C proposal without the unnecessary adverse impacts 

of the Subtitle C approach. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
922

Comment Number: EPA-HQ-RCRA-2009-0640-06326-9

Organization1:Old Dominion Electric Cooperative (ODEC)

Commenter1: Lisa D. Johnson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

ODEC expresses qualified support for EPA's general effort to develop regulations under RCRA 

for CCRs; we believe the essential question is not whether CCRs should be regulated and subject 

to federal enforcement authority, but what form that regulation should take. To that end, ODEC 

supports the development of federal non-hazardous waste regulations for CCRs under the 

proposed Subtitle D "Prime" option, 75 Fed. Reg. at 35210, provided that EPA first addresses the 

important limitations listed below and explained in more detail in the NRECA comments.

l. Compliance with EPA's requirement to close surface impoundments and landfills within the 

proposed timeframe may not be feasible.

Response: The commenter is referred to the discussion in Unit VI of the preamble for a 

discussion on closure.

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

Response: The commenter is referred to the discussion on location criteria found in Unit VI of 

the preamble.

3. EPA should amend its run-on control requirements for CCR surface impoundments. Current 

run-on controls were designed for Municipal Solid Waste landfills and are not appropriate for the 

way impoundments at many power plants are designed.

Response: The commenter is referred to the discussion on hydrologic and hydraulics criteria 

found in Unit VI of the preamble.

4. EPA should allow for alternative groundwater monitoring parameters and should revise 

certain of the proposed parameters.

Response: The commenter is referred to the discussion on groundwater monitoring found in 

Unit VI of the preamble.

5. EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit.

Response: The commenter is referred to the discussion on qualified professional engineers 

found in Unit V of the preamble.
923

6. The Subtitle D rule should allow for alternate liner systems.

Response: The commenter is referred to the discussion on alternative liner designs found in 

Unit VI of the preamble.

7. Problems with certain definitions under the Subtitle D proposal should be addressed as 

discussed below:

“CCR landfill” The proposed definition is overbroad and it would inappropriately capture the use 

of CCRs that are being used for a legitimate functional purpose, and thus are not a "solid waste" 

because they have not been "discarded." In addition, the phrase "large scale fill operations" is 

vague and cannot be included in a final regulatory definition without a supplemental proposal 

setting forth discernible and readily understandable parameters as to what constitutes the type of 

"large scale fill operations" that would constitute a CCR landfill.

"CCR landfill and CCR piles" Another flaw in the proposed definition of "CCR landfill" is that it 

would include all "piles" of CCRs, with no limitation of any kind ("For purposes of this part, 

[CCR] landfills also include piles, sand and gravel pits, quarries...").Id. at 35239-40 (proposed 40 

C.F.R. §§ 257.2, 257.40(b)). As is the case with "large scale fill operations," inclusion of this 

term in the proposed definition is overbroad and would inappropriately capture CCR 

management activities that do not constitute disposal.

“CCR surface impoundment" The proposed definition of "CCR surface impoundment or 

impoundment" is overly broad in that it would inappropriately capture impoundments that are 

not designed to manage CCRs. To correct this problem, ODEC urges EPA to adopt the suggested 

definition of "CCR impoundment" set forth in the comments that the Utility Solid Waste 

Activities Group "USWAG" is submitting on the current Proposal and we adopt that suggested 

definition and incorporate it here by reference.

Response: The commenter is referred to the discussion on definitions found in Unit VI of the 

preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06339-5

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

III. AEPCO URGES EPA TO ADOPT NON-HAZARDOUS WASTE RULES FOR CCRS
924

Arizona Electric Power Cooperative expresses qualified support for EPA’s general effort to 

develop regulations under RCRA for CCRs; we believe the essential question is not whether 

CCRs should be regulated and subject to enforcement authority, but what form that regulation 

should take. To that end, Arizona Electric Power Cooperative supports the development of 

nonhazardous waste regulations for CCRs under the proposed Subtitle D Prime option, [Footnote 

42: 75 Fed. Reg. at 35210]

1. Compliance with EPA’s requirement to close surface impoundments and landfills within the 

proposed timeframe may not be feasible. Provided that EPA first addresses the important 

limitations listed below and explained in more detail in the NRECA comments, which are 

adopted herein by reference:

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

3. EPA should amend its run-on control requirements for CCR surface impoundments. Current 

run-on controls were designed for Municipal Solid Waste landfills and are not appropriate for the 

way impoundments at many power plants are designed.

4. EPA should allow for alternative groundwater monitoring parameters and should revise 

certain of the proposed parameters.

5. EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit.

6. The Subtitle D rule should allow for alternate liner systems that are consistent with a qualified 

design engineer’s recommendations.

Response: The commenter is referred to the response made on the previous comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06352-12

Organization1:Dayton Power & Light Company (DP&L)

Commenter1: JoAnne Rau

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle D Option

The second option presented in the proposed rule is that of regulating CCRs pursuant to RCRA 
925

subtitle D as a non-hazardous waste when designated for disposal and includes the "D prime" 

proposal. DP&L supports the D prime approach which provides for the proper management of 

CCRs designated for disposal while affording the continued operation of existing surface 

impoundments for the remainder of their useful life if they are being operated properly. It is 

DP&L's position that this approach is fully protective of human health and the environment in 

that it establishes reasonable standards for CCR management, many of which are the same as 

those contemplated as part of the subtitle C option including groundwater monitoring and 

corrective action for surface impoundments and landfills, while not subjecting CCRs to 

unnecessary and overly burdensome hazardous waste regulation.

USEPA has modeled the proposed subtitle D CCR requirements after the regulations governing 

municipal solid waste landfills contained in 40 CFR part 258. This approach more appropriately 

recognizes that the problem that needs to be addressed is structural integrity of containment for a 

waste stream that is relatively inert and safe compared to wastes that have previously been 

designated as hazardous. As USEPA states:

EPA believes that the part 258 criteria represent a reasonable balance between ensuring the 

protection of human health and the environment from the risks of these wastes and the practical 

realities of facilities' ability to implement the criteria. The engineered structures regulated under 

part 258 are very similar to those found at CCR disposal facilities, and the regulations applicable 

to such units would be expected to address the risks presented by the constituents in CCR wastes. 

Moreover, CCR wastes do not contain the constituents that are likely to require modification of 

the existing part 258 requirements, such as organics; for example, no adjustments would be 

needed to ensure that groundwater monitoring would be protective, as the CCR constituents are 

all readily distinguishable by standard analytical chemistry.

... [t]hus, several of the provisions EPA is proposing under RCRA subtitle D either correspond to 

the provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after the 

existing subtitle C requirements. [FN 16: 75 Fed. Reg. at 35193.]

A key provision of the D prime option vs. the subtitle D approach is that it does not arbitrarily 

require the closure of existing surface impoundments if they are being operated properly. While 

the subtitle D proposal would require existing surface impoundments to either close by the 

effective date of the final rule or be retrofit with a composite liner, included in the D prime 

approach are appropriate mechanisms to assure the existing impoundments continue to operate 

safely for the remainder of their useful life. These include groundwater monitoring and 

corrective action as well as stability requirements based on long-standing Mine Safety and 

Health Administration (MSHA) protocols. DP&L agrees that surface impoundments that are not 

operated to be fully protective of human health and the environment should take action to correct 

any deficiencies or close but DP&L does not agree with a requirement to impose retrofit or 

closure requirements on facilities that are performing safely, especially when such requirements 

would impose significant costs to the utility industry for marginal, if any environmental benefit

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
926

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06357-24

Organization1:Kansas City Power & Light Company

Commenter1: Paul M. Ling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime Option will be Fully Protective of Human Health and the Environment

KCP&L supports the Subtitle D Prime option because it would ensure the development of fully 

protective controls for CCRs in an effective and practical manner. It would include all the 

elements of the primary “Subtitle D” option with the exception that it “would not require the 

closure or installation of composite liners in existing surface impoundments; rather, these surface 

impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at 

35210.

As EPA itself acknowledges, many of the Subtitle D option’s substantive requirements, 

including those under Subtitle D Prime, are the same as those under the Subtitle C option, 

including the technical and design standards for CCR liner systems, groundwater monitoring and 

associated corrective action, and surface impoundment integrity standards. 75 Fed. Reg. at 

35193. In fact, many of the provisions under the Subtitle D option “either correspond to the 

provisions EPA is proposing to establish for RCRA subtitle C, or are modeled after existing 

Subtitle C requirements.” Id. In addition, the Subtitle D Prime option would allow continued 

recycling of ash products without the stigma of hazardous waste designation.

Given that the Subtitle D Prime’s substantive controls are patterned in large part on the proposed 

Subtitle C controls, the overall level of protection to human health and the environment are 

equivalent under both options. Therefore, the Subtitle D Prime option would provide the same 

level of protection to human health and the environment as the Subtitle C option without the 

corresponding adverse impacts of the Subtitle C approach.

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does 

not require all existing surface impoundments to close if they are operating in a manner that is 

fully protective of human health and the environment. This option does not include the automatic 

requirement to dredge and line all existing CCR surface impoundments within five years of the 

effective date of the regulations, or close these impoundments. Id. at 35244; proposed 40 C.F.R. 

§ 257.71(g). Under the Subtitle D Prime option, existing CCR surface impoundments would 

continue to be subject to groundwater monitoring and corrective action requirements so that any 

threats from these units during their operating life would be detected and appropriate corrective 

action would be taken.
927

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06357-26

Organization1:Kansas City Power & Light Company

Commenter1: Paul M. Ling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

KCP&L therefore supports the Subtitle D Prime option because it will ensure that CCR disposal 

practices are protective of human health and the environment without requiring the needless 

closure of environmentally sound CCR impoundments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06388-5

Organization1:Louisiana Public Service Commission

Commenter1: Eve Kahao Gonzalez

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commission does appreciate that federal regulations are required for states that have lax or 

no regulatory oversight of coal combustion waste. However, States such as Louisiana have 

established and implemented effective waste programs, and the LPSC believes that such 

beneficial programs should not be preempted.

As the entity charged with ensuring that Louisiana utilities operate efficiently, safely, reliably 

and in the public interest, the LPSC believes that the EPA's special waste designation would

undermine our citizens' best interests. Regulation of CCRs under RCRA Subtitle C would very 

likely increase electricity costs and compromise the reliability of power delivery services in 

Louisiana. The LPSC accordingly opposes the Subtitle C option in the CCR proposal, and 
928

encourages the EPA to enact the RCRA Subtitle D "prime" option. This option would vest the 

EPA with sufficient authority to regulate sites that are out of compliance with water safety 

standards, while concurrently providing electricity providers with the necessary flexibility to 

manage coal ash efficiently, safely and cost effectively.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-15

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Duke Energy supports federally enforceable regulation for CCR as a non-hazardous waste under 

the Subtitle D regulatory structure, including the D Prime option, and it recommends some 

additional important amendments to that option as discussed below. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-19

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Duke Energy recommends that in adopting the Subtitle D regulatory option, the Agency amend 

the proposed Subtitle D framework so that the final rules are fully implementable by state 

environmental regulatory agencies. Many states currently have robust non-hazardous regulatory 

programs in place for CCR that either mirror 40 C.F.R. § 258 or are even more stringent than 

what EPA has proposed under the Subtitle D option in the Proposed Rule.
929

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-65

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

If a facility can demonstrate protectiveness of human health and the environment with financial 

assurance, D prime is a reasonable modification. D prime option may be beneficial for sitespecific conditions and economic conditions affecting the facility. Lower costs for closure and 

operation of a facility has the potential to increase the available funds for financial assurance. 

This would be a case-by-case assessment of conditions to determine protectiveness and available 

financial assurance.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

As discussed in the proposed rule (see 75 FR at 35210, June 21, 2010), the subtitle D alternative 

did not include proposed financial assurance responsibility requirements. EPA further stated 

that any such requirements would be proposed separately. Consistent with the proposal, EPA is 

not promulgating any financial assurance requirement under this subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06411-13

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3
930

Comment Excerpt Text:

As stated previously, ADEM opposes the adoption of the Subtitle C option and supports the 

regulation of CCRs under Subtitle D. As for the Subtitle "D prime" option, the Department 

believes the requirement to retrofit existing surface impoundments with composite liner systems 

would in essence force the closure of these impoundments. Since no data has been presented that 

shows CCRs to be a characteristic hazardous waste, the Department sees no substantial benefit to 

accelerating the closure of the CCR impoundments currently in use. Since under both the 

Subtitle D and the Subtitle D prime options, the closure of the impoundments and the subsequent 

disposal of CCRs would meet the same requirements, the Department would urge EPA to adopt 

the Subtitle D prime option.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06415-16

Organization1:The Virginia Coal Association, Inc. (VCA)

Commenter1: John T. Heard

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The proposed Subtitle D regulatory program would require the automatic closure of CCR surface 

impoundments that are currently operating in a manner that is fully protective of human health 

and the environment. EPA's alternative "Subtitle D prime" approach would be preferable ill this 

regard because it would include all of the elements of the proposed Subtitle D regulatory 

program except that it "would not require the closure or installation of composite liners in 

existing surface impoundments: rather these surface impoundments could continue to operate for 

the remainder or their useful life." However, the VCA believes that the following additional 

modifications (these modifications relate to several of the requirements found in the Subtitle D 

regulatory program as currently proposed) must be made to the "Subtitle D prime" approach 

before EPA adopts this approach in any final rule.

• EPA should not adopt a specific timeframe for closure but require surface impoundments and 

landlills to close according to a closure plan approved by a state or developed and certified by a 

registered professional.

• The proposed rule should be amended to not impose location restrictions on existing surface 

impoundments and landfills as EPA has provided no evidence in the record to substantiate 

structural stability issues in these restricted areas.
931

• EPA should amend its run-on control requirements for surface impoundments by instead just 

requiring that these units be designed to appropriately address peak discharge events. 

• EPA should allow registered professionals to make compliance certifications even if they are 

employees of the owner/operator of the disposal unit.

• EPA should allow for alternate liner systems, since in many regions of the country and Virginia 

the proposed composite liner system is simply unnecessary to ensure groundwater protection and 

in other instances an alternate liner system (i.e. geosynthetic clay liners) would be more 

appropriate that the one proscribed in the proposed rule.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06422-23

Organization1:Dynegy Inc

Commenter1: Ben C. Trammell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, the Subtitle D Prime option is sufficiently protective of the environment. The only 

difference between Subtitle D and Subtitle D Prime regulation is that, under Subtitle D Prime, 

existing surface impoundments would not be required to be dredged and lined or closed within 

five years of the effective date of the regulations; rather, existing surface impoundments could 

continue to operate for the remainder of their useful life. 75 Fed. Reg. at 35210. Thus, the 

Subtitle D Prime option has the very practical benefit of allowing owner/operators to phase out 

existing surface impoundments in an orderly manner consistent with normal station planning, 

scheduling, and budgeting functions. The Subtitle D Prime option also appropriately recognizes 

the fact that most recently constructed surface impoundments and landfills are lined due to state 

requirements. Importantly, the continued use of an existing surface impoundment through its 

useful life under the Subtitle D Prime option would be subject to groundwater monitoring and, in 

the event releases are detected, corrective action, including closure, where appropriate, would be 

required. Thus, because Subtitle D Prime largely mirrors Subtitle D, which has the same controls 

as the proposed Subtitle C standards, the Subtitle D Prime option would provide a sufficient level 

of protection, without the unnecessary costs and burdens associated with dredging and lining or 

closing existing surface impoundments that currently pose no threat to human health or the 

environment.
932

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-4

Organization1:Garrett & Moore, Inc.

Commenter1: Bernie Garrett

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Subtitle D Prime Option

The description of the Subtitle D Prime Option in the proposed rules is: 

“Under this option, the regulations would not require the closure or installation of composite 

liners in existing surface impoundments; rather, these surface impoundments could continue to 

operate for the remainder of their useful life.”

While we are supportive of this option in that it will allow Owners to fully utilize existing 

facilities, while still meeting stability and groundwater compliance standards, there is an inherent 

flaw in this approach unless much more specific criteria are provided. The TVA spill is the 

primary reason these rules are being considered. The TVA spill, in our opinion, was a result of 

“wet-stacking.” Even with significant engineering design and controls, the practice of “wetstacking” is high-risk as compared to other acceptable CCR disposal methods. Continuing “to 

operate for the remainder of their useful life” will allow Owners practicing “wet-stacking” to 

continue and more importantly may drive other Owners to implement it.

If EPA is seriously considering the Subtitle D Prime Option and we believe EPA should, more 

specific rules must be included in addressing the continued operation of existing CCR surface 

impoundments. EPA should specifically prohibit “wet-stacking.” 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06446-6

Organization1:Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: Michalene Reilly
933

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

VII. EPA Should Adopt Federal Non-Hazardous Waste Rules For CCRs

A. Hoosier Energy expresses qualified support for EPA’s general effort to develop regulations 

under RCRA for CCRs; we believe the essential question is not whether CCRs should be 

regulated and subject to federal enforcement authority, but what form that regulation should take. 

To that end, Hoosier Energy supports the development of federal non-hazardous waste 

regulations for CCRs under the proposed Subtitle D “Prime” option, 75 Fed. Reg. at 35210, 

provided that EPA first addresses the important limitations listed below and explained in more 

detail in the NRECA comments.

1. Compliance with EPA’s requirement to close surface impoundments and landfills within the 

proposed timeframe may not be feasible.

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

3. EPA should amend its run-on control requirements for CCR surface impoundments. Current 

run-on controls were designed for Municipal Solid Waste landfills and are not appropriate for the 

way impoundments at many power plants are designed.

4. EPA should allow for alternative groundwater monitoring parameters and should revise 

certain of the proposed parameters.

5. EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit.

6. The Subtitle D rule should allow for alternate liner systems.

Response: The commenter is referred to the Agency’s responses to the previous comment

Comment Number: EPA-HQ-RCRA-2009-0640-06339-5

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
934

Comment Number: EPA-HQ-RCRA-2009-0640-06528-6

Organization1:Buckeye Power, Inc.

Commenter1: Patrick O'Loughlin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Buckeye expresses qualified support for EPA's general effort to develop regulations under

RCRA for CCRs; we believe the essential question is not whether CCRs should be regulated and 

subject to federal enforcement authority, but what form regulation should take. To that end, 

Buckeye supports the development of federal non-hazardous waste regulations for CCRs under 

the proposed Subtitle D "Prime" option, 75 Fed. Reg. at 35210, provided that EPA first addresses 

the important concerns and limitations listed below and explained in more detail in the NRECA 

comments:

1. Compliance with EPA's requirement to close surface impoundments and landfills within the 

proposed timeframe may not be feasible.

2. EPA should not apply location restrictions to existing surface impoundments or landfills.

3. EPA should amend its run-on control requirements for CCR surface impoundments. Current 

run-on controls were designed for Municipal Solid Waste landfills and are not appropriate for the 

way impoundments at many power plants are designed.

4. EPA should allow for alternative groundwater monitoring parameters and should revise 

certain of the proposed parameters.

5. EPA should allow registered professional engineers and hydrologists to make compliance 

certifications even if they are employees of the owner/operator of the disposal unit.

6. The Subtitle D rule should allow for alternate liner systems.

Response: The commenter is referred to the Agency’s responses to the previous comment

Comment Number: EPA-HQ-RCRA-2009-0640-06339-5

Organization1:Arizona Electric Power Cooperative, Inc.

Commenter1: Theresa D. Legere

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
935

Comment Number: EPA-HQ-RCRA-2009-0640-06540-8

Organization1:Indiana Construction Association (ICA)

Commenter1: Charles V. Kahl

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

This addresses impoundment integrity and water quality implications, as well as regulatory 

oversight, but still allows existing coal ash impoundments to continue operating and provides 

cost-effective construction materials.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06541-3

Organization1:Large Public Power Council (LPPC)

Commenter1: Brian H. Moeck, LPPC Environmental Task Force

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

• EPA should adopt the D-prime option for existing surface impoundments Under § 3005(j)(6) of 

RCRA, any surface impoundment that is storing a waste that becomes newly subject to Subtitle 

C requirements must either come into compliance with the applicable minimum technology 

requirements, or else close. Thus, if EPA were to adopt the Subtitle C co-proposal, the composite 

liner requirement for new CCR surface impoundments would apply to all existing CCR surface 

impoundments by operation of law. The statutory deadline for such retrofitting is four years, but 

under authority of § 3004(x) of RCRA, EPA has proposed to extend the deadline for existing 

CCR surface impoundments to five years (plus an additional two years to close units that are not 

retrofitted by that deadline).

There is no comparable statutory imperative under Subtitle D that would require existing CCR 

surface impoundments to be retrofitted to meet the liner requirements for new CCR surface 

impoundments. Nevertheless, not only would the Subtitle D co-proposal impose such a retrofit 

requirement on existing CCR surface impoundments, but it would set a shorter deadline (five 

years) than the deadline under the Subtitle C co-proposal (seven years) for closing units that have 

not been retrofitted. LPPC objects to the retrofit requirement under Subtitle D, and urges EPA to 
936

adopt the D-prime option, which would allow existing CCR surface impoundments to continue 

operating for the remainder of their useful lives, subject to the requirements for groundwater 

monitoring, corrective action, and stability (dam safety) specifications

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06552-2

Organization1:Agru America, Inc. (Agru)

Commenter1: Ernest H. Heins

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.4 4.7

Comment Excerpt Text:

Subtitle “D Prime” Option

Under EPA’s proposed Subtitle “D Prime” Option existing CCR Impoundments would not have 

to close or install composite liners, but could operate for the remainder of their useful life. We 

believe that this would be a gross oversight by the EPA to allow these facilities to continue 

operating as unlined facilities for an undetermined period of time. 

EPA estimates that there are currently approximately 300 CCR landfills and 584 CCR 

impoundments. In 2004, EPA estimated that 31% of the CCR landfills and 62% of the CCR 

impoundments lacked liners. Therefore, exempting existing impoundments from the regulation 

for their useful life would allow a majority of unlined facilities (approximately 362 of 455 

unlined CCR facilities) to remain unlined for an indeterminate period of time. It is also worth 

noting that approximately 58% of the CCR impoundments lack Groundwater monitoring 

compared to 10% of the CCR landfills. EPA further notes that notes that states currently regulate 

CCR landfills at a rate which is disproportionately high compared to CCR impoundments. 

Finally EPA notes that its decision to revisit the its regulatory determination for CCRs under the 

Bevill amendment is driven in part by the failure of a surface impoundment in Kingston, TN in 

December 2009. 

EPA’s proposed regulation appears to lack a suitable definition for “useful life” as it pertains to 

CCR impoundments. We are concerned over who would be responsible for making this 

determination and for the potential lack of the ability to enforce closure based on unreasonable 

determinations of “useful life”. Obviously the failure at Kingston was at a facility which was 

considered by the owner and its technical advisors to still be operating in its useful life. EPA 

currently estimates that that 75% of the CCR impoundments are greater than 25 years old and 

10% greater than 50 years old. 
937

CCRs disposed in landfills are stabilized and typically exhibit a low permeability and a stable 

waste mass. However, the liquid/semi-solid wastes disposed of in CCR impoundments could 

pose a greater hazard to human health and the environment through their ability to flow and the 

potential for higher hydraulic pressures. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06723-18

Organization1:West Virginia Department of Environmental Protection (WVDEP)

Commenter1: Gary Casto on behalf of Randy C. Huffman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

By EPA's own admission, the proposed design and performance standards for CCR disposal of 

Subtitles C and D are nearly identical. As referenced in the comments to Subtitle C, requirements 

governing the transportation, storage, and treatment of CCRs prior to disposal are not warranted. 

Therefore, CCR disposal can effectively be regulated under Subtitle D, specifically D prime. 

Implementing Subtitle D prime requirements is not anticipated to have an effect upon disposal 

capacity in West Virginia. 

Properly designed and operated surface impoundments that are protective of human health and 

the environment should be allowed to continue to operate throughout their design life as afforded 

by Subtitle D Prime. To require the closure of all surface impoundments in response to the 

failure of TVA's inadequately designed Kingston, Tennessee, facility simply cannot be justified. 

Furthermore, as you are aware, the Tennessee Department of Health issued a report in early 

September 2010 which concluded that the Kingston incident did not cause any serious risk to 

human health. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06726-7

Organization1:The North American Coal Corporation

Commenter1: Joseph D. Friedlander

Commenter Type: Other Company
938

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As previously stated, North American Coal believes the Subtitle D prime option is the least bad 

proposal. Although our utility customers are in a better position to provide detailed comments 

regarding CCR handling in utility-operated disposal facilities, some suggestions are provided 

here if EPA adopts this approach in the final rule. These modifications relate to several of the 

requirements found in the Subtitle D regulatory program proposed. First, EPA should not adopt a 

specific timeframe for closure but require surface impoundments and landfills to close according 

to a closure plan approved by a state or developed and certified by a registered professional. 

Second, EPA should not impose location restrictions on existing surface impoundments and 

landfills since EPA has provided no evidence in the record to substantiate structural stability 

issues in these restricted areas. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Third, EPA should amend its run-on control requirements for surface impoundments by instead 

just requiring that these units be designed to appropriately address peak discharge events.

Response: The commenter is referred to the revised requirement in Unit VI of the preamble

Fourth, in terms of groundwater monitoring, EPA should allow the state or a registered 

professional to delete constituents not reasonably expected to be in the waste or establish an 

alternative list of indicator parameters consistent with the groundwater monitoring programs 

applicable to municipal and non-municipal solid waste landfills.

Response: The commenter is referred to the discussion in Unit Vi of the preamble.

Fifth, EPA should allow registered professionals to make compliance certifications even if they 

are employees of the owner/operator of the disposal unit.

Response: The commenter is referred to the discussion of qualified professional engineers 

found in Unit V of the preamble.

Finally, EPA should allow for alternate liner systems, since in some regions of the country, the 

proposed composite liner system is simply unnecessary to ensure groundwater protection, and in 

other instances, an alternate liner system (i.e. compacted clay liners) would be more appropriate 

than the one prescribed in the proposed rule. For example, compacted clay liners have been 

proven effective in North Dakota's semi-arid climate for containment and control of disposed 

CCR's from electrical power plants
939

Response: The commenter is referred to the discussion on alternative liner system found in 

Unit VI of the preamble .

Comment Number: EPA-HQ-RCRA-2009-0640-06813-2

Organization1:Central Arizona Water Conservation District (CAWCD)

Commenter1: Thomas W. McCann

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

We concur with SRP's recommendations that CCR NOT be regulated under the Resource 

Conservation and Recovery Act ("RCRA") Subtitle C hazardous waste controls, but instead be 

regulated as a non-hazardous waste under Subtitle D of RCRA. Moreover, EPA should adopt the 

Subtitle D "Prime" option described in SRP's comments, together with the improvements (allow 

direct state administration – extend timelines for any closures) to the Prime option that are also 

described in detail in SRP's comments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06813-3

Organization1:Central Arizona Water Conservation District (CAWCD)

Commenter1: Thomas W. McCann

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option, with the SRP-recommended revisions, will allow EPA to establish 

an environmentally sound and protective program for management of CCRs in land disposal 

units. This option will not impair or unnecessarily stigmatize the beneficial use of CCRs, or 

impose unnecessary regulatory costs on NGS, which in turn would result in increased costs of 

electricity for CAWCD, potentially decreased reliability at NGS, and ultimately higher water 

costs for the CAP customers. 
940

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06813-5

Organization1:Central Arizona Water Conservation District (CAWCD)

Commenter1: Thomas W. McCann

Commenter Type: Local Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CAWCD joins SRP in urging EPA to adopt the non-hazardous waste, Subtitle D Prime approach 

to regulation of CCRs with the following important revisions or modifications:

Allow alternatives to composite liners when site specific characteristics support such 

alternatives.

Response: See preamble discussion in Unit VI.

Require closure, if necessary, only under a state approved program that provides a reasonable 

time frame.

Response: See preamble discussion in Unit VI.

Allow an alternative list of groundwater monitoring parameters based on site specific conditions 

and approval by a registered professional.

Response: See preamble discussion in Unit VI.

Include a mechanism for qualified state programs to administer the rules instead of the selfimplementing approach.

Response: See preamble discussion in Unit IX.

Ensure an adequate time frame for facilities to come into compliance.
941

Response: See preamble discussion in Unit VI.

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without 

the significant and costly impacts of Subtitle C, while (i) allowing the continued use of 

environmentally acceptable existing CCR surface impoundments for the remainder of their 

useful lives; and (ii) supporting the continued beneficial use of CCRs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06820-11

Organization1:Western Business Roundtable

Commenter1: Holly Propst

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.5

Comment Excerpt Text:

4. Subtitle D-Prime Option is the most workable alternative. 

The Roundtable believes that the Subtitle D-Prime Option is the most reasonable alternative been 

advanced in the proposed rule. It would incorporate major Subtitle D requirements, but would 

allow CCR surface impoundments deemed environmentally sound to continue to operate for the 

remainder of their useful lives. With some corrections – including those we have highlighted 

above in these comments – this option has decided advantages: 

It would be consistent with EPA’s final 2000 Bevill Regulatory Determination for CCRs, EPA’s 

other evaluations/determinations from 1988, 1993 and 1999, as well as the reams of historical 

technical data produced from private and public sources regarding CCRs. 

It would assure that CCR disposal units nationwide are operated in an environmentallyprotective manner. 

It would allows qualified states (those with programs that meet or exceed the Subtitle D 

standards) to step in and assume administration of the regulations. This, in turn, would help 

assure enough flexibility in the regulatory regime to account for regional and state-specific soil, 

hydrologic and other environmental conditions. 

It would avoid the inherent inefficiencies that come with “one-size-fits-all” federal regulations. 

States can more efficiently monitor and regulate facilities and develop operational and closure 

requirements that make both environmental and economic sense. 
942

It would be less cumbersome than other alternatives, would avoid overly oppressive and 

duplicative regulations and, thus, help minimize the chance that the regulations would 

unnecessarily drive up electricity costs or impair availability/use of CCPs throughout the 

economy.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06827-7

Organization1:Oklahoma Gas and Electric Company (OG&E)

Commenter1: Kenneth E. Raymond

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

V. If Additional Rules are Merited and Applied in a Consistent Manner, then the Agency Should 

Adopt the Subtitle D "Prime" Option with Appropriate Amendments

As evidenced by the above comments, it is OG&E's opinion that the Subtitle C option is both 

inconsistent with the statute and could result in unwarranted regulation, especially when the 

same level of protection of human health and the environment can be achieved through a 

regulatory program structured under RCRA Subtitle D. For this reason, OG&E supports the 

adoption of an appropriate Subtitle D "Prime" option with certain amendments. This option 

would allow the Agency to establish an environmentally protective program for landfills and 

surface impoundments where CCRs are disposed without imposing unnecessary and

unreasonable costs on the electric utility industry. And, as previously noted, the development of 

regulations under RCRA Subtitle D would be the consistent with the Agency's final regulatory 

determinations made via the statutory process established by Congress pursuant to tlle Bevill 

Amendment.

The Agency acknowledges in the proposed rule that many of the Subtitle D option's substantive 

requirements, including those under the Subtitle D "Prime" option, are the same as those under 

the Subtitle C option, including the technical and design standards for liners and leachate 

collection systems, groundwater monitoring and associated corrective action and surface 

impoundment integrity standards.

Given that the Subtitle D option's controls are patterned in large part on the proposed Subtitle C 

option's controls, the overall level of protection to human health and the environment would 

appear to be equivalent under both options. However, one of the key elements of the Subtitle D 

"Prime" option that makes it a more appropriate option is that it does not include the requirement 

that existing CCR surface impoundments be retrofitted with composite liners and leachate 

collection systems. It is unnecessary to upgrade or close existing impoundments that are 

operating in a manner that is protective of human health and the environment in light of the fact 
943

that they would continue to be subject to groundwater monitoring and corrective action 

requirements such that any threats from them during their operating life would be detected and 

appropriate corrective action taken.

Indeed, one of the single largest anticipated cost elements of the primary Subtitle D option would 

be the mandatory upgrade or closure of all CCR surface impoundments. There is no basis for the 

imposition of this requirement on existing impoundments that are operating in a safe and 

effective manner. For this reason, the Subtitle D "Prime" option would be the most appropriate 

option of those proposed because it will ensure that CCR management practices are protective of 

human health and the environment without requiring the needless upgrade or closure of 

otherwise environmentally sound surface impoundments.

Other critical issues associated with the Subtitle D option tllat need to be addressed include: an 

overly broad definition of "CCR surface impoundment" that could inappropriately include 

impoundments that receive only incidental amounts of CCRs into the universe of regulated 

surface impoundments; an overly broad definition of "CCR landfill that inappropriately includes 

"large scale fill operations" and "piles"; unrealistic timeframes for the closure of CCR surface 

impoundments; unwarranted location restrictions for CCR surface impoundments; unnecessary 

run-on control requirements for CCR surface impoundments; the absence of alternative liner 

systems for CCR surface impoundments; erroneous leachate collection system requirements; and 

constituents considered inappropriate or unnecessary for the proposed groundwater monitoring 

program. Each of these issues is discussed in detail below

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06832-23

Organization1:SCANA Corporation

Commenter1: Shirley M. Ruffin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle D Prime Option 

The only description of the Subtitle D Prime Option in the proposed rules is: 

Under this option, the regulations would not require the closure or installation of composite 

liners in existing surface impoundments; rather, these surface impoundments could continue to 

operate for the remainder of useful life. 

While we are supportive of this option in that it will allow owners to fully utilize existing 

facilities, while still meeting stability and groundwater compliance standards, there is an inherent 
944

flaw in this approach unless much more specific criteria are provided by the EPA. If the agency 

is seriously considering the Subtitle D Prime Option (and we believe the agency should), then 

more specific rule requirements must be included to address the continued operation of existing 

CCR surface impoundments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06833-17

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The results of the structural integrity assessments support the selection of the D Prime option, 

which would allow existing CCR surface impoundments to continue operating for the remainder 

of their useful life.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06833-8

Organization1:Dominion Resources Services, Inc.

Commenter1: Lisa J. Keck on behalf of Pamela Faggert

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We believe that EPA should regulate CCRs under the "Subtitle D Prime" option presented in the 

proposed rule. EPA acknowledges that the substantive requirements for CCR disposal units 

under a Subtitle D approach would be virtually identical to those proposed under the Subtitle C 

hazardous waste option, ensuring the environmentally sound management of CCRs, without 

adversely impacting CCR beneficial use and unnecessarily regulating power plant operations that 

are not the focus of EPA's concern with CCR disposal practices. The Subtitle D Prime option 
945

avoids the major flaw contained in the alternative Subtitle D option, which is the unfounded 

requirement to retrofit or close all surface impoundments irrespective of their environmental 

performance. The Subtitle D Prime option correctly recognizes that existing CCR impoundments 

should be allowed to continue operating, provided that these units meet applicable groundwater 

monitoring standards to ensure they arc performing in an environmentally sound manner. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06844-1

Organization1:Intermountain Power Agency (IPA)

Commenter1: James A. Hewlett

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

IPA supports RCRA Subtitle D "Prime" option 

IPA believes the "Subtitle D Prime" option is the best option to regulate CCR. This option will 

enable EPA to establish an effective environmentally protective program without hurting CCR 

beneficial uses and imposing significantly higher electricity costs to ratepayers. Under RCRA 

Subtitle D Sections 4005(c) and 4010(c), the EPA has statutory authority to promulgate federal 

regulations specifically designed for CCR disposal units. These regulations would be directly 

enforceable by the states and the public under RCRA's citizen suit provision. 

In addition, the EPA would also retain its imminent and substantial endangerment authority to 

take action against any CCR units that posed a risk to human health or the environment. The 

development of Subtitle D regulations for CCR under Section 4010 of RCRA offers a workable 

solution for the EPA, electric utilities, and the public. While this approach would likely require a 

supplemental proposal, it will provide the EPA with the enforcement authority it desires, while 

avoiding the adverse implications of Subtitle C. The command-and-control Subtitle C hazardous 

waste option would not be needed because the EPA can develop federally enforceable rules for 

CCR under an equally protective, Subtitle D non-hazardous waste program.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
946

Comment Number: EPA-HQ-RCRA-2009-0640-06846-11

Organization1:Florida Department of Environmental Protection (FDEP)

Commenter1: Richard B. Tedder on behalf Mary Jean Yon

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.2

Comment Excerpt Text:

o In Part 257.71 EPA is proposing that existing CCR surface impoundments be constructed with 

a composite liner within five years of the effective date of the final rule. The Department 

disagrees with this requirement and believes EPA's proposed "D prime" approach for surface 

impoundments is appropriate. Under D prime, existing surface impoundments would not have to 

close or install composite liners and could continue to operate for their useful lives. The 

Department agrees with the D prime approach for existing surface impoundments provided they 

are shown not to be causing adverse environmental impacts. Only in those cases where the data 

demonstrates that the impoundment is causing, or expected to cause, environmental impacts 

would it be required to install a new or upgraded liner system.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06851-1

Organization1:American Electric Power (AEP)

Commenter1: John M. McManus

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

AEP strongly recommends that USEPA adopt a regulatory program under the D Prime option. 

AEP also strongly believes that an approach under Subtitle C is completely unwarranted. 

AEP recommends that USEPA adopt the D Prime option, which would allow continued use of 

ash ponds meeting performance standards, and is a reasonable and environmentally protective 

standard to which to hold the electric power industry. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
947

Comment Number: EPA-HQ-RCRA-2009-0640-06863-24

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Avista supports the development of Subtitle D non-hazardous waste regulations for CCRs under 

the proposed Subtitle D “Prime” option, provided that EPA first incorporates certain important 

modifications discussed below.See PPL Generation testimony from August 31, September 2, and 

September 21. The Subtitle D Prime option, with the proper adjustments, will allow EPA to 

establish a robust and environmentally protective program for coal ash disposal units without 

crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants or 

threatening jobs, power reliability, and affordable electricity costs. While some of our suggested 

modifications to the Subtitle D Prime proposal will likely necessitate issuance of a supplemental 

proposal, this additional procedural step is worthwhile because it will help ensure promulgation 

of an environmentally protective regulatory program for CCRs consistent with the rulemaking 

record and the dictates of the Bevill Amendment. 

A. The Subtitle D Prime Option Will Be Fully Protective Of Human Health And The 

Environment 

Avista supports the Subtitle D Prime option because it would ensure the development of fully 

protective controls for CCRs in an effective and practical manner. It would include all of the 

elements of the primary “Subtitle D” option with the exception that it “would not require the 

closure or installation of composite liners in existing surface impoundments; rather, these surface 

impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at 

35210. 

Under the Subtitle D Prime option, existing CCR surface impoundments would continue to be 

subject to groundwater monitoring and corrective action requirements so that any threats from 

these units during their operating life would be detected and appropriate corrective action would 

be taken. Avista agrees that CCR disposal units that are not fully protective must either take 

appropriate corrective action or close; however, there are many CCR surface impoundments that 

have adequate controls in place to protect human health and the environment. There is no 

legitimate reason why these units should not be allowed to continue operating. 

As mentioned earlier, the continued use of storm water/waste water management surface 

impoundments is critical to the ZLD operations at Colstrip. Regulation under the Subtitle D 

Prime option would therefore not adversely impact this operation.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
948

Comment Number: EPA-HQ-RCRA-2009-0640-06863-28

Organization1:Avista Corp.

Commenter1: Darrell Soyars

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

While Avista supports the Subtitle D Prime option, (and believes that it can be administered 

through qualified state programs with back-up EPA enforcement authority in under-performing 

states as explained in USWAG's comments), there are fundamental flaws with elements of the 

proposed regulations. Key problems include: unrealistically short closure timeframes for CCR 

disposal units; the unwarranted application of all location restrictions to CCR surface 

impoundments; the inclusion of inappropriate constituents in the proposed groundwater 

monitoring program, the failure to allow for alternate liner systems, and an overly broad 

definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.”

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06867-1

Organization1:Manufacture Alabama

Commenter1: Blake Hardwich on behalf of Mike Conlon

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.5 4.1.3

Comment Excerpt Text:

Federal Regulation Is Unnecessary, But the "D Prime" Option Is the Best Among EPA's 

Proposals. 

Direct federal regulation of CCBs is unnecessary. Coal ash and other CCBs consistently pass 

EPA's own test procedures to determine toxicity; in other words, available scientific evidence 

shows that CCBs are not hazardous for purposes of RCRA Subtitle C. CCB management and 

disposal is straightforward, and states are fully able to oversee CCBs to the extent the states may 

deem appropriate. 
949

Nevertheless, if EPA determines that federal action is necessary, Manufacture Alabama urges 

EPA to utilize its solid waste regulatory authority pursuant to Subtitle D and in a manner that 

allows existing CCB impoundments to remain in operation, in a fashion similar to EPA's so 

called "D Prime" option. Unlike EPA's proposed Subtitle D regulations, any new standards for 

CCB management and disposal should flexible and allow qualified experts to approve facilities 

and operations that ensure safety and environmental protection in a manner that accounts for 

sitespecific conditions and operational realities. Performance-based standards will allow the 

regulated community to achieve the desired margin of safety in a more cost-effective manner. On 

the other hand, to impose centrally dictated, inflexible standards would result in increased costs 

that do not effectively improve environmental protection, but which will drive up rates for utility 

customers. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06867-10

Organization1:Manufacture Alabama

Commenter1: Blake Hardwich on behalf of Mike Conlon

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

In conclusion, Manufacture Alabama appreciates the opportunity to provide these comments on 

EPA's proposed CCB Rule. As set out above, Manufacture Alabama urges EPA to adopt a 

modified Subtitle "D Prime" approach that allows existing facilities to remain in effect and 

provides flexible, performance-based standards. Any regulation beyond this approach will only 

add costs and threaten jobs, without any commensurate improvement to safety, public health or 

environmental protection. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06868-2

Organization1:Cleco Corporation

Commenter1: Bill Matthews
950

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should adopt the Subtitle D Prime regulatory option because it will be protective of human 

health and the environment and because many solid waste units already have Subtitle D Prime 

controls installed.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06877-3

Organization1:Detroit Edison Company

Commenter1: Dennis Leonard Principal Engineer

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As detailed in the more extensive comments of the Utility Solid Waste Activities Group 

(USWAG)*, the Subtitle D Prime option is fully protective of the environment, the most cost 

effective and the only option that is consistent with the Bevill Amendment to the Resource 

Conservation and Recovery Act. Detroit Edison echoes USWAG's comment on the 

appropriateness of a subtitle D program as well as all of the other comments of USWAG. Detroit 

Edison and its parent company DTE Energy are members of USWAG.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06877-7

Organization1:Detroit Edison Company

Commenter1: Dennis Leonard Principal Engineer

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
951

Comment Excerpt Text:

Detroit Edison supports a subtitle D prime approach with the inclusion of much more flexibility 

and state agencies involvement in site specific design considerations such as the one explained 

above. The result would be a rule that would encourage the reuse of CCR byproducts. For those 

CCR's that cannot be recycled, a subtitle D prime approach, described above, would also 

encourage the reuse of existing CCR disposal sites, rather than needlessly forcing utilities to 

develop Greenfield sites.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06915-2

Organization1:Alcoa Inc.

Commenter1: Curt Wells

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.2

Comment Excerpt Text:

2. Alcoa believes that a Subtitle C approach is not substantiated and recommends 

implementation of the Subtitle D’ approach.

EPA’s proposed rule was initiated primarily as a result of the December 2008 impoundment 

failure and resulting coal ash spill from the TVA facility in Kingston, TN. As a result of this 

incident, EPA is now proposing to potentially overturn its own two prior Bevill exemption 

precedents regarding the regulatory classification of coal combustion residuals (CCR’s) *Subtitle 

C option+ or at a minimum enhance the management regimen for CCR surface impoundments 

and landfills in lieu of a regulatory reclassification *Subtitle D and D’ options+.

Alcoa believes that revising the regulatory determination for CCR’s is not supported by the 

available data and that the most efficient and cost-effective means to ensure protection of human 

health and the environment is to implement a Subtitle D’ option.

Alcoa has reviewed the EPA Office of Research and Development Report entitled 

‘Characterization of Coal Combustion Residues from Electric Utilities – Leaching and 

Characterization Data’ from December 2009 and found that it does not support overturning the 

prior Bevill exemption precedents for CCR management under Subtitle D. For example, arsenic 

leachabability of CCR’s is noted as a key concern in the proposal. In the report, a range of 

liquids across different pH’s is used to perform TCLP testing that generates data from 34 CCR 

sources (Report Figure 55). Of the 34 sources, all 34 exhibited a leachability at their own pH of 

less than 5 mg/L, the current characteristic criteria for hazardous waste designation. One sample 

of the 34 then exhibited a leachability of greater than 5 mg/L when the testing was run with 

liquids at a variety of non-standard pH’s . EPA then expresses concern regarding the leachability 
952

of arsenic from CCR’s and uses that information to support overturning the prior Bevill 

exemption precedents. Alcoa believes that the arsenic data actually supports the prior Bevill 

determinations in that a huge preponderance of the data indicates low arsenic leachability across 

a wide range of pH’s. EPA’s own statistical tests such as that presented in SW-846 Chapter 9 

provide a validation of this.

In addition, Alcoa’s own test data from groundwater assessments near both active and closed 

surface impoundments at the Alcoa Warrick facility indicates that CCR material is safely 

managed outside of RCRA Subtitle C controls. This data was derived through groundwater

monitoring performed as a part of the RCRA Facility Investigation process. Groundwater from 

several areas was tested:

The first area was an active surface impoundment (ash ponds – SWMA B) where piezometers 

were installed into the ash pond walls. The water data obtained from this area is indicative of 

what can be expected to infiltrate from the ash ponds and gives the first indication of the 

leachability of the ash material. This test data indicates that TCLP tests conducted as per SW-846 

overstate the average leachability of all of the compounds within the ash with the exception of 

arsenic (for which the water concentration is essentially identical to the TCLP data). Further note 

that this point in the ash pond wall is far upstream of any potential receptors and prior to the 

incorporation of any DAF or other factors into a risk model.

The second area was downstream of an ash fill area (SWMU 42) and is similar in scope and 

application to the Battlefield Creek Golf area referenced as a site of concern in the preamble. 

This data indicates that downstream ground water samples were equal to or better than 

background samples in the area.

The third area included ash ponds (SWMU 57) that have been closed for over 20 years. The test 

data from this closed and capped ash pond indicates no detection of any chemicals above their 

relevant levels of concern in the groundwater.

Table 1 provides a summary of the data supporting the above comments. The full dataset is also 

being submitted as an addendum for EPA’s consideration and in further support of Alcoa’s 

comments in this area.

[See original comment for Table I: Summary of TCLP data, Piezometer Data, and Groundwater 

Data Taken from the RCRA Facility Investigation]

As noted by the actual test data from Alcoa-Warrick Operation’s ash pond, potential 

groundwater impacts from by coal combustion by-products can be managed without Subtitle C 

controls. EPA’s conservative approach by using the differing pH ranges for the TCLP data and 

then applying conservative transport models to that data overstates the impact of these 

compounds in the environment and does not provide sufficient justification to overturn the 

previous Bevill precedents.

Many of the raw feed stocks of coal will have differing constituents, and many of the end 

products from coal combustion are different. This was noted in the draft rule’s TCLP data for the 

various combustion products. Also, the geological conditions in which this material is handled 

will vary among different facilities. Having an overarching and overly conservative rule not 

tailored to note differences in coal, coal residues, or geology is inappropriate. Rather, Alcoa 

believes that CCR’s should be managed at the state level through a Subtitle D’ approach. For this 

reason, Alcoa recommends that a basic investigative approach to determine the actual impact that 

CCRs may pose to human health and the environment on a facility-specific basis be incorporated 

into the Subtitle D’ option. Then, this determination can be used by the state regulatory agency to 

develop a management strategy for CCR’s that is commensurate with the site specific conditions 
953

and potential environmental impacts noted. Using this tailored approach under the Subtitle D’ 

option, EPA can be assured of using sound science and due diligence in CCR management rather 

than mandating a one-size-fits-all approach based on overly conservative assumptions as is 

proposed with the Subtitle C option

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06917-28

Organization1:Texas Commission on Environmental Quality (TCEQ)

Commenter1: Tangela Niemann on behalf of Mark R. Vickery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Under the D-prime request, EPA is soliciting comments on whether existing CCR surface 

impoundments should be allowed to operate until the end of their operating life without having 

to be closed or retrofitted with composite liners. Considering that the EPA proposal requires 

groundwater monitoring for these units, TCEQ suggests that EPA not require closure or costly 

liner retrofits for existing CCR surface impoundments with low potential for releases of CCR 

constituents to groundwater.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-3

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. The Subtitle D Prime Option Will Be Fully Protective Of Human Health And The 
954

Environment

The Subtitle D Prime option proposed by EPA would be fully protective of human health and the 

environment. It would include all the elements of the primary Subtitle D option with the 

exception that it would not require the closure or installation of composite liners in existing 

surface impoundments; rather, those environmentally compliant impoundments could continue to 

operate for the remainder of their useful life. 

EPA acknowledges in the proposal that many of the Subtitle D option’s substantive requirements 

– including those under Subtitle D Prime – are the same as those under the Subtitle C option, 

including the technical and design standards for CCR liner systems, groundwater monitoring and 

associated corrective action, and surface impoundment integrity standards. Many of the

provisions under the Subtitle D option either correspond to the provisions EPA is proposing to 

establish for RCRA Subtitle C, or are modeled after existing subtitle C requirements. In addition 

to borrowing from key elements of RCRA’s existing standards for municipal solid waste 

landfills under 40 C.F.R. Part 258 – which the Agency found would be expected to address the 

risks presented by the constituents in CCR wastes – the proposed Subtitle D rules also 

considered and incorporated some of the self-implementing elements of RCRA’s hazardous 

waste interim status requirements into the Subtitle D proposal. Given that the Subtitle D Prime’s 

substantive controls are patterned in large part on the proposed Subtitle C controls, the overall 

level of protection to human health and the environment are equivalent under both options. 

One of the elements of the Subtitle D Prime option that makes it the better choice is that it would 

not include the automatic requirement to dredge and line all existing CCR surface impoundments 

within five years of the effective date of the regulations, or close these impoundments. It makes 

no sense to upgrade and/or close existing CCR surface impoundments operating in a manner that 

is fully protective of human health and the environment. Under the Subtitle D Prime option, 

existing CCR surface impoundments would continue to be subject to groundwater monitoring 

and corrective action requirements, so that any threats from these units during their operating life 

would be detected and appropriate corrective action taken

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06956-6

Organization1:Tri-State Generation & Transmission

Commenter1: Barbara A. Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2. The Subtitle D Prime Option Requires Certain Amendments to Better Reflect CCR Disposal 

Operations 

Tri-State G&T believes the Subtitle D Prime option can be administered through qualified state 
955

programs with EPA enforcement oversight in under-performing states as is appropriate. Tri-State 

G&T also believes there are flaws with elements of the proposed Subtitle D Prime option that 

need correction. Key problems include: unrealistically short closure time frames for CCR 

disposal units; the unwarranted application of all location restrictions to existing CCR surface 

impoundments; the inclusion of inappropriate constituents in the proposed groundwater 

monitoring program, the failure to allow for alternate liner systems, and an overly broad 

definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.” These 

and other issues are discussed below

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06987-29

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Entergy Supports the Subtitle D “Prime” Designation with Necessary Adjustments

As stated above, Entergy supports federal regulation of coal ash under the Subtitle D regime, 

although, as currently written, the proposal needs significant improvements to avoid potentially 

insurmountable compliance issues.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06987-6

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive
956

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Unlike the Subtitle C approach, D “Prime” will establish a robust and environmentally protective 

program for coal ash storage and disposal units without crippling coal ash beneficial use and 

imposing unnecessary regulatory costs on power plants, threatening jobs and increasing 

electricity costs. The Subtitle D “Prime” option recognizes that existing CCR impoundments 

with sound performance should be allowed to continue operating.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06987-7

Organization1:Entergy Services, Inc.

Commenter1: Joseph Hantz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2 7.4.2

Comment Excerpt Text:

However, Entergy contends that the Subtitle D “Prime” option, as written, requires 

improvements, including allowing for administration of the federal Subtitle D rules for CCRs by 

state regulatory programs to avoid duplication of federal and state efforts. This would also allow 

states to enforce compliance through a traditional permitting framework. Entergy also believes 

that this option does not limit EPA’s enforcement authority, since sections 4003(a), 4010(c) and 

similar provisions of RCRA clearly allow EPA to oversee state rules regulating solid wastes. 

EPA already exercises this authority with municipal solid waste (MSW) landfills and non-MSW 

landfills that may receive conditionally exempt small quantity generator hazardous waste. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06988-13

Organization1:Missouri Joint Municipal Electric Utility Commission
957

Commenter1: Floyd Gilzow

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A modified Subtitle D option is less likely to destroy beneficial reuse of coal ash, impose 

unnecessary regulatory costs of municipal power plants and the citizens in their communities, 

threaten electric power reliability and increase unemployment levels. Meeting the USWAG 

recommendations may require additional regulatory processes, but doing so will give the EPA a 

robust common sense solution to a perceived environmental threat that would be consistent with 

the rulemaking record and the dictates of the Bevill Amendment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06991-15

Organization1:East Kentucky Power Cooperative (EKPC)

Commenter1: Jerry Purvis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.7

Comment Excerpt Text:

If EPA chooses to promulgate CCR regulations, EKPC believes it would be most prudent to 

promulgate the regulations under the Subtitle D' option for several reasons.

Subtitle D' is just as protective of groundwater and provides the same environmental benefits 

with much lower costs (see attached Table 1) to our members as options C and D. All three 

options require groundwater monitoring, and corrective actions if a release is identified. D' 

would allow electric utilities to utilize their existing surface impoundments for storage, which 

would alleviate the immediate and long-term capacity issues that will occur under the Subtitle C 

and D options. D' would also include closure requirements, stability requirements, fugitive dust 

controls, financial responsibility, and the institution of a national standard for storing CCR.

[See original comment for Table 1: Estimated Costs of Subtitle C, D, and D' options; a detailed 

list of estimated costs is provided for each of EKPC's three facilities]
958

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06993-5

Organization1:Oglethorpe Power Corporation

Commenter1: Douglas J. Fulle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Oglethorpe Power supports the general effort to develop non-hazardous waste regulations for

CCBs, however, and believes' that the "D Prime" option, with some modifications, could serve as 

the appropriate regulatory vehicle. In addition to allowing existing CCB disposal facilities to 

continue operations for the remainder of their useful lives, EPA should, at most, simply impose 

requirements which ensure that such facilities are safe, effective and performing as expected. 

Beneficial uses of CCBs should receive broad support from the Agency, to avoid unwanted 

impacts of disposal and unnecessary uses of virgin resources otherwise needed to replace CCBs 

in beneficial applications. As discussed immediately below, state authorities are well-positioned 

to regulate CCBs in a manner beneficial to public (including the citizens of the State of Georgia).

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07001-19

Organization1:Vectren Corporation

Commenter1: Angila M. Reinerford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.11

Comment Excerpt Text:

Vectren has estimated that the closure and retrofit costs for Vectren's facilities under the 

proposed RCRA Subtitle C program would total $90 million dollars, with an additional $2.5 

million annually for incremental O&M. By comparison, under the proposed Subtitle D Prime 

program closure costs for Vectren's facilities would not be expended until the conclusion of the 
959

remaining useful lives of the existing surface impoundments, provided that Vectren can 

demonstrate that the existing surface impoundments are environmentally sound. Thus, under the 

D Prime proposal, Vectren's ratepayers will receive the assurance of an environmentally sound 

CCR regulatory program, yet not be required to pay for unwarranted and exorbitant closure, 

handling and disposal requirements that do not add significantly to the environmental, health and 

safety benefits of the existing state regulatory programs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07047-21

Organization1:Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GRE supports the Subtitle D prime option. We support this option as it avoids the issues detailed 

above for equivalent environmental protection. GRE feels EPA has the authority to enforce nonhazardous disposal rules through several avenues. Please refer to the comments supplied by 

USWAG and the National Rural Electric Cooperative Association (NRECA). 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07047-23

Organization1:Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We also support this option because it preserves the use of existing ponds which are functioning 
960

in a safe and environmentally protective manner. GRE feels strongly that any Subtitle D option 

must include a mechanism for a qualified state program to implement the CCR rules where the 

program meets or exceeds the federal requirements.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07533-43

Organization1:Nebraska Department of Environmental Quality (NDEQ)

Commenter1: David B. Haldeman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

The Subtitle D Prime option would be the preferable approach for Nebraska. NDEQ has only one 

permitted facility that meets the definition of a surface impoundment, and that does not have a 

composite liner system. A ground water monitoring program is implemented at this facility and 

monitoring results demonstrate that the facility has not impacted ground water. Requiring this 

facility to either close or retrofit with a composite liner system would be costly and yield no 

greater environmental benefit.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07682-6

Organization1:Class of '85 Regulatory Response Group

Commenter1: Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regulatory 

Response Group

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

EPA should adopt the Proposal's Subtitle D Prime Option, subject to certain improvements 
961

(outlined below and fully described in the US WAG comments), because it is supported by the 

rulemaking record and will be fully protective of human health and the environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07682-7

Organization1:Class of '85 Regulatory Response Group

Commenter1: Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regulatory 

Response Group

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA should improve the Proposal's Subtitle D Prime Option by: (1) increasing the transition 

period, which is inadequate as proposed; (2) not applying location restrictions to existing 

landfills or surface impoundments; (3) modifying run-on control requirements; (4) allowing 

alternative groundwater monitoring parameters and revising proposed parameters; (5) allowing 

registered professionals who are also owner/operator employees to make compliance 

certifications; (6) allowing alternative liner requirements; (7) correcting errors related to leachate 

collection system requirements; and (8) clarifying andlor modifying certain definitions that are 

currently vague andlor improper

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule. The commenter is referred to Unit VI of 

the preamble for the Agency’s responses to the proposed changes the commenter has 

requested.

.

Comment Number: EPA-HQ-RCRA-2009-0640-07682-8

Organization1:Class of '85 Regulatory Response Group

Commenter1: Debra J. Jezouit et al., Baker Botts L.L.P. on behalf of Class of '85 Regulatory 

Response Group

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
962

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

EPA should coordinate the implementation of the Proposal's Subtitle D Prime Option with the 

states and allow qualified state programs to directly administer Subtitle D CCR regulations.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule. The commenter is also referred to the 

discussion in Unit V on the approach utilizing subtitle D authority.

Comment Number: EPA-HQ-RCRA-2009-0640-07803-6

Organization1:GDF SUEZ Energy Generation North America

Commenter1: Bradley J. Cooley

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

GSEGNA Support for Subtitle D Prime Approach

GSEGNA understands EPA’s concern about the unregulated management and disposal of coal 

combustion residuals, as expressed in the preamble to the proposed rule. Of the alternatives EPA 

has proposed to address this concern, GSEGNA believes strongly that the Subtitle D, or nonhazardous waste approach is most appropriate; and that within the Subtitle D option, the briefly 

described “Subtitle D Prime” approach is the best alternative. The Subtitle D Prime approach 

provides adequate and sufficient environmental protection at the lowest cost to the regulated 

industry. EPA has expressed a concern about lack of federal enforceability under the current 

regulatory structure. Although EPA may be unsure of how it would enforce a Subtitle D Prime 

program, the same RCRA provisions that allow EPA to regulate municipal solid waste landfills 

would apply here. In RCRA Section 4010(c), the agency is directed to develop upgraded Subtitle 

D standards for facilities that “may receive” or may potentially receive “household hazardous 

wastes” or conditionally exempt small quantity generator wastes. A related provision is RCRA 

Section 4005(c), which authorizes EPA to enforce these upgraded Subtitle D regulations in those 

states that fail to adopt the federal rules. EPA itself has described this authority as “significant in 

that it represents the first authority for EPA enforcement of regulatory requirements under 

Subtitle D” [Footnote 1: 53 Fed. Reg. 33314, 33383 (August 30, 1988)]. CCR disposal facilities 

would be included in the scope of EPA’s authority under these provisions, as they are Subtitle D 

facilities that “may” accept household hazardous wastes and CESQG wastes, and clearly have 

the “potential” to receive such wastes.
963

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08211-25

Organization1:North Dakota Department of Health

Commenter1: L. David Glatt

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.4

Comment Excerpt Text:

The NDDoH does not support the "D-Prime" option because we believe that existing unlined 

impoundments should be lined, as currently required in our rules.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08216-7

Organization1:Dixie Electric Cooperative

Commenter1: Gary Harrison

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

We feel that the approach in the Subtitle D Prime option offers the same degree of protection 

without the burdens of Subtitle C and that this approach will create a reasonable and effective 

regulatory program that protects the environment, while not adversely impacting our economy. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08218-72

Organization1:Maryland Department of the Environment (MDE)
964

Commenter1: Shari T. Wilson

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Department notes that the under the ‘‘D prime’’ option, “...existing surface impoundments 

would not have to close or install composite liners but could continue to operate for their useful 

life.” As the Department understands that many of the existing impoundments are not lined, we 

do not see how this could be as safe as an appropriate regulatory system that does require safe 

closure or retrofit within a reasonable time. However, the Department encourages EPA to adopt a 

proposal similar to the 40 CFR 258 rule, not “D Prime” or either of the proposed rules. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08221-11

Organization1:NextEra Energy, Inc.

Commenter1: Tomey Tuttle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As stated earlier NextEra energy supports the development of Subtitle D regulation under the D 

Prime option with some modification. The USWAG comments provide extended detail of the 

modifications recommended. (See Section XI and XII of the comments submitted by USW AG) 

To protect the established CCR beneficial use markets and avoid unnecessary customer rate 

increases NextEra Energy encourages EPA to pursue the Subtitle D proposal with modifications 

to allow for acceptance of qualified state programs, use to end of life for existing landfills and 

impoundments that are performing according to design and allowing for alternative liner 

systems. A flexible nonhazardous industrial waste standard will provide for protection of public 

health and the environment as well as avoiding an excessive financial burden for the utility 

industry and its customers that would result form either a Subtitle C hazardous waste 

determination or restrictive Subtitle D regimen. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
965

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08221-2

Organization1:NextEra Energy, Inc.

Commenter1: Tomey Tuttle

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

An effective Subtitle D program would provide for minimum standards, a mechanism for 

approval of effective state programs, state specific flexibility for alternatives to the minimum 

criteria, and continued use of existing ash management facilities (both wet and dry) to end of life 

as long as they do not endanger public health or the environment. A rigid prescriptive approach 

that has no flexibility to consider other factors such as local geology and available materials can 

be inefficient and add necessary costs. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08223-10

Organization1:MeadWestvaco

Commenter1: Dirk J. Krouskop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.2 4.1.3

Comment Excerpt Text:

Conclusion: MWV cautions against an over reaction by USEPA with regard to the proper 

management of CCRs. Subtitle C is not only unnecessary, but would cause an overload on 

available resources if managed as a hazardous waste. By making such a determination it will 

discourage the beneficial use of CCRs, resulting in two important negative consequences. First, 

facilities will turn away from beneficial use projects due to perceived liability issues. Second, 

this will lead to additional landfill disposal of materials, which runs contrary to encouraging 

recycling and alternative uses for materials. 

USEPA should focus on impoundment and dam safety and their impact on human health and 
966

environment and not try to move CCRs into a Subtitle C or D program. 

MWV requests that EPA carefully consider this proposed rule and the ramification of going to a 

Subtitle C program. If EPA must add new regulations, MWV supports the Subtitle D "Prime" 

option which allows continued use of well-maintained existing units. MWV encourages the 

Agency to develop a rule that protects human health and the environment while providing 

maximum flexibility to the already overly regulated business community.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08223-5

Organization1:MeadWestvaco

Commenter1: Dirk J. Krouskop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

EPA Promulgation of the Subtitle D "Prime": MWV continues to believe regulation of CCRs 

should continue to occur at the state level. If EPA insists on new regulations, MWV supports the 

Subtitle D "Prime" option which allows continued used of existing units that are not leaking as 

the most reasonable approach USEP A could consider. These units should be evaluated on a case 

by case basis. Virtually all the Pulp and Paper Industry impoundments, are smaller, dry 

impoundments and do not pose a risk to human health and environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08225-10

Organization1:Minnesota Power (ALLETE)

Commenter1: Michael G. Cashin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
967

EPA Refines the D Prime Option into its Final CCR Rule.Under EPA’s proposed D Prime 

option, existing ash storage facilities would be allowed to continue to operate through the rest of 

their operational life. MP strongly supports provisions that would allow existing facilities to 

continue to receive coal ash when being managed in a responsible manner. Forcing closure of 

existing ash storage facilities prematurely unnecessarily adds to the amount of acreage that has 

been impacted by ash storage. In independent programs, the EPA has proposed incentives for use 

of ash storage “brown field” sites for applications such as renewable energy development. It 

makes good sense to optimize the storage of ash at existing facilities before requiring 

construction of new ash storage facilities at other locations, so that “brown field” environmental 

benefits can be optimized for ash storage before the land is targeted for other purposes. 

Premature closure of an existing ash storage operation unnecessarily adds to compliance costs 

while effectively increasing the amount of real estate impacted by ash storage practices. MP is 

also concerned that EPA management of CCRs under the D Prime option could force currently 

permitted ash handling provisions to cease and relocate ash to new storage facilities to meet 

stringent ground water table separation requirements. These changes would be imposed without 

first providing the option for facilities to demonstrate that existing ash storage arrangements are 

protective of the environment and should be allowed to continue under State Regulations. EPA 

should provide for means by which facilities can demonstrate how engineering and design 

practices can enable continued operation using existing permit, ash management plan provisions 

under a D Prime approach to regulation. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08225-16

Organization1:Minnesota Power (ALLETE)

Commenter1: Michael G. Cashin

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.1

Comment Excerpt Text:

Considering that the existing Minnesota State requirements already provide for good ash 

management practices, the benefits portion cited by EPA are being delivered in Minnesota 

without requiring these overlays of additional Federal regulatory stipulations and their related 

cost premiums. Consequently, EPA regulation that allows for continued operation under 

Minnesota and other State “well managed” programs is preferred, with regulation under EPA’s D 

Prime option also providing for overall good ash management practices if EPA chooses to 

impose Federal regulation nationwide. 
968

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-27

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

If an existing CCR surface impoundment is structurally sound and the owner or operator has 

demonstrated it has not impacted ground water quality, then closure or installation of liners is not 

warranted. Ohio EPA suggests that the “D prime” approach be modified to require the owner or 

operator document the above within five years. Failure to document would trigger the 

requirement to either close or install composite liners.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-7

Organization1:Ohio Environmental Protection Agency

Commenter1: Chris Korleski

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

In summary, Ohio EPA believes the best approach to regulating CCR nationally is to develop 

minimum national regulations under Subtitle D. Further, Ohio EPA is supportive of a '"D prime" 

type approach to existing CCR surface impoundments as discussed in the attached detailed 

comments. This approach should include a U.S. EPA approved permitting program that can be 

administered by states. 
969

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-33

Organization1:Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. A Revised Subtitle D Approach Should Impose Requirements That Are In Line With The 

Level Of Risk Actually Posed By CCR Disposal Sites

1. CCR Disposal Facility Design And Construction Standards Should Only Apply To New 

Facilities And Should Not Be Applied Retroactively And Existing Facilities Should Be Permitted 

To Operate For The Remainder of Their Useful Lives

As explained in Section III.D above, the real risks posed by existing CCR disposal sites are 

nowhere as extreme as those presented by EPA in the Proposed Rule, as those risks are based on 

the results of overly conservative modeling. Since EPA used its modeling to develop its Subtitle 

D approach, EME submits EPA should revisit its proposal based on more realistic estimates of 

risk and then work with the states to implement revised standards or their equivalent as may be 

developed by the states. EME believes that the net result of such a re-evaluation would be the 

conclusion that design and construction standards do not need to be applied retroactively. The 

cost of retrofitting an existing facility to meet design and construction standards are much higher 

than constructing a new facility to those standards, because in the latter case the facility can be 

designed from the ground up to meet the new standards. Retrofits should only be required 

when/where the existing operations are not protective of human health or the environment. In 

sum, EME believes that EPA should adopt its Subtitle D* approach as outlined below.

The “D*” approach differs from EPA’s Subtitle D alternative because it grandfathers in existing 

CCR disposal facilities. Under “D*,” existing facilities will be permitted to operate for the 

remainder of their useful lives without having to undertake extensive and costly upgrades (e.g., 

the installation of composite liners). [Footnote 331: 75 Fed. Reg. at 35,210.] As the data 

indicates, typical groundwater exposures at existing dry landfills, whether lined or unlined, do 

not present a human health or environmental concerns because the metal leaching that does occur 

at such sites is: (i) generally at low levels, (ii) does not impact deeper drinking water sources, 

and (iii) in all instances those metals that do leach out move offsite, toward potential receptors, 

very slowly (e.g., EPA’s own estimates shows that peak concentrations do not occur for 

thousands of years). [Footnote 332: The same factors indicate that EPA should treat short-term 

storage ponds differently from permanent ponds, and that the former should be permitted to 

operate for the remainder of their useful lives. See Section III.D.] Based on these considerations, 

EME believes it would be unreasonable for EPA to require retroactive upgrades of existing 

facilities unless the Agency (or a state) has site-specific data indicating that a particular site 
970

poses a risk to human health or the environment. While EPA already has the authority it needs to 

collect such information and order the necessary corrective actions, [Footnote 333: Under 42 

U.S.C. § 6927, “any person who generates, stores, treats, transports, disposes of, or otherwise 

handles hazardous waste shall, upon the request of [EPA or an authorized officer], furnish 

information relating to such wastes.”(emphasis added). 42 U.S.C. § 6983 instructs the 

Administrator to “develop, collect, evaluate, and coordinate information on” a broad range of 

solid and hazardous waste issues, including, but not limited to, collection, management, and 

reduction of solid and hazardous waste.] EME agrees that existing landfill sites should be 

required to have groundwater monitoring and periodic integrity inspections to verify that no such 

impacts or potential impacts are occurring. EME also agrees that existing disposal units should 

provide, if they are not already required to do so, financial assurance where closure and postclosure care are required. [Footnote 334: Per the terms of its solid waste permits, EME currently 

provides financial assurance for its coal ash landfill in Pennsylvania and its CCR disposal quarry 

in Lincoln, Illinois. EME monitors groundwater at both sites.] EME believes that the same 

approach applies to existing surface impoundments used for disposal – i.e., the risks associated 

with these facilities are site-specific and not germane to that class of disposal facility. Moreover, 

EPA’s April 2010 risk assessment already identified the 80 surface impoundments of potential 

concern, and therefore already knows which sites need a closer review and potential mitigation 

measures.

A Subtitle D* approaches is supported by EPA’s RIA. In the RIA, EPA calculates the benefit-tocost ratio for the Proposed Rule using three different scenarios – Scenario 1 assumes the 

Proposed Rule regulation will increase beneficial reuse of CCRs; Scenario 2 assumes the 

Proposed Rule negatively impacts beneficial reuse; and Scenario 3 assumes the Proposed Rule 

has no effect on beneficial use. [Footnote 335: The other cost/benefits assumptions that go into 

each of these scenarios are the same.] As explained in Section III.F above, Scenario 1’s 

assumption about increased beneficial reuse is implausible (particularly if the Agency adopts the 

Subtitle C approach). Similarly, Scenario 3 (no effect) is equally unlikely under a Subtitle C 

approach. While EPA’s estimates of net benefits are highest where it regulates under RCRA 

subtitle C, that conclusion is premised on Scenario 1’s assumption that such regulation will have 

a positive impact on beneficial reuse. [Footnote 336: EPA’s net benefits calculation rests on the 

utterly implausible assumption that a Subtitle C listing will increase beneficial use of CCRs.] 

Thus, setting aside Scenario 1 for being unrealistic, it is notable that under Scenarios 2 and 3, 

where EPA assumes regulating CCRs will have either a negative effect on beneficial use or no 

effect at all, net benefits are no longer highest under a Subtitle C approach, and instead are 

highest for the “D*” alternative. Under Scenarios 2 and 3, net benefits are lowest where CCRs 

are listed under Subtitle C. [Footnote 337: RIA 194-96. Assuming regulations decrease the 

beneficial use of CCRs (Scenario 2) or have no effect at all on beneficial use (Scenario 3), net 

benefits under Subtitle C reflect are negative. Losses range from $236,196 to $251,166 under 

Scenario 2 and from $2,647 to $17,617 under Scenario 3. By comparison, net benefits under 

Subtitle “D prime” range from gains of $724 to losses of $2,666 under Scenarios 2 and 3.] Even 

more telling than the net benefits calculated in the RIA, the benefit-to-cost ratio of the three 

regulatory alternatives provides an even more useful metric for assessing the cost effectiveness 

of the various proposals. From a benefit-to-cost ratio perspective, the most favorable ratios are 

found for the subtitle “D*” approach, [Footnote 338: RIA 192. Benefit-to-cost ratio under 

Subtitle C regulation ranged from 4.286 to 5.022, while under Subtitle “D prime” it ranged from 

4.33 to 5.37.] and is even more pronounced when the reduction in beneficial reuse is factored in. 
971

[Footnote 339: RIA 194. Negative ratio for Subtitle C ranging from -11.343 to -10.607. Positive 

for Subtitle “D prime,” from .182 to 1.222. RIA 196. .134-.870 for Subtitle C and .182-1.222 for 

Subtitle “D prime.”]

In addition to Scenarios 1 through 3, the RIA evaluated a fourth alternative proposal that was not 

one of those proposed by EPA, but for which the Agency nevertheless seeks comment. This 

fourth alternative roughly tracks EME’s proposal. It would be based on EPA’s subtitle D 

authority. Under this approach, composite liners would be mandated for new landfills and 

groundwater monitoring standards would be required for all facilities, as well as requirements for 

corrective action, closure, and post-closure care. Existing surface impoundments and other CCR 

disposal facilities would continue for the remainder of their useful lives, while EPA (or the 

states) would conduct periodic structural stability assessments of existing disposal facilities 

relying on criteria developed by the U.S. Army Corps of Engineers to rate the hazard potential of 

existing impoundments. For those identified by the criteria as having a high or significant hazard 

potential, EPA (or the states) would rely on its existing enforcement authority under RCRA, 

CERCLA, and/or the Clean Water Act to require facilities to redress the issues identified with 

their surface impoundments. [Footnote 340: 75 Fed. Reg. at 35210.] Under this approach annual 

monitoring costs would be $3.4 million annually compared to $876 million if it were to proceed 

with its proposal to phase out surface impoundments entirely. [Footnote 341: 75 Fed. Reg. at 

35210.]

The data in the administrative record clearly illustrate the cost effectiveness of adopting a 

regulatory alternative that permits existing disposal facilities to operate for the remainder of their 

useful lives. As explained above, EME recommends that EPA adopt a modified version of its 

“D*” proposal. Allowing existing facilities to continue to operate for the remainder of their 

useful lives without forcing them to implement costly and unnecessary retrofits, subject to 

prudent compliance, monitoring and financial assurance requirements, will permit EPA to 

protect human health and the environment while maximizing the net benefits of the CCR Rule by 

reducing the financial burdens associated with it to levels that are in accordance with the actual 

risks posed by CCR disposal sites

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08245-4

Organization1:Sphere One, Inc.

Commenter1: Ryan M. Brownhill

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Sphere One strongly urges the EPA to enact the Subtitle D Prime ruling. The engineering 

standards are the same in both Subtitle C and D. Needed protections to human health and the 

environment will be accomplished without unnecssarily stigmatizing CCP's. Everyone 

acknowledges the huge benefits, both enviromental and economic, that are achieved in the 

recylcing of CCP's. Based on all current scientific data, cenospheres are completely safe and in 
972

no way warrant a hazardous waste label. The EPA cannot be certain that a Subtitle C ruling 

won't impact reuse. The very people who deal in the markets every day are unanimous in their 

position that it will have a devastating effect. We are the experts in this market, and every one of 

us disagrees with the EPA's assesment. It would be irresponsible for the EPA to ignore all the 

industry comments and assume their assmuptions are correct. Subtitle D prime will ensure that 

CCP's are safely managed while continuing to promote and expand their beneficial use.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08247-1

Organization1:Tucson Electric Power Company

Commenter1: Erik Bakken

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA SHOULD ADOPT THE SUBTITLE D “PRIME” OPTION, WITH APPROPRIATE 

ADJUSTMENTS, AND COORDINATE IMPLEMENTATION OF THE SUBTITLE D 

REGULATIONS WITH THE STATES 

TEP supports the development of Subtitle D “Prime” non-hazardous waste regulations for CCRs. 

The Subtitle D “Prime” option, with adjustments, will allow EPA to establish an environmentally 

protective program for coal ash disposal units without crippling coal ash beneficial use and 

imposing unnecessary regulatory costs on power plants, threatening jobs, power reliability, and 

increasing electricity costs. 

TEP?s Springerville Generating Station (SGS) is a four-unit coal-fired, steam electric generating 

facility with a combined net generating output of approximately 1,560 Mw. SGS?s annual fly ash 

production is approximately 1,100,000 tons per year. Approximately 50,000 tons of CCRs per 

year from our Irvington Generating Station?s (IGS) Unit 4 is transported to the SGS landfill. The 

SGS and IGS CCRs are landfilled in a permitted ash landfill located at the SGS facility. The ash 

landfill is of bench and crest design and it is currently permitted under the Aquifer Protection 

Permit (APP) for 400 acres. Potential leachate from the landfill is being monitored at a point 

approximately 10 feet into the Chinle clay formation. To date, all seepage wells have been dry. 

The SGS?s Aquifer Protection Permit (APP) # P-101448 was last modified in 2009 by the 

Arizona Department of Environmental Quality (ADEQ). 

Shaw Environmental, Inc. prepared a study “Coal Combustion Residuals Proposed Impact Study 

(November 2010)” for TEP to evaluate the impact of the proposed CCRs regulations on TEP?s 
973

SGS located near Springerville, Arizona. The study concluded the following: for SGS the 

estimated cost of a Subtitle C program over 30 years would be approximately $283,000,000 

while the Subtitle D program over 30 years would cost $161,000,000 and a Subtitle D program 

that allows alternative liner system would cost $103,000,000. At SGS, the Subtitle D program 

with an alternative liner system would provide equivalent protection as a Subtitle C program, 

while providing cost savings of $180,000,000. The development of Subtitle D regulations with 

alternative liner system based on site specific conditions (e.g., depth of groundwater, annual 

rainfall, distance to drinking water sources, soil type and permeability) would be the appropriate 

outgrowth of EPA?s two Reports to Congress and two final Regulatory Determinations under the 

Bevill Amendment declaring that CCRs do not warrant hazardous waste regulation under RCRA 

Subtitle C, but rather should remain the province primarily of state regulatory programs under 

RCRA Subtitle D. 

Under Arizona law, CCR surface impoundments, pits, ponds, lagoons, and landfills are 

considered “discharging” facilities which require an APP. ADEQ?s robust APP program is 

designed to protect Arizona?s scarce drinking water resources. ADEQ uses the Arizona Pollution 

Discharge Elimination System (AZPDES) to protect surface waters and Aquifer Protection 

Permits (APP) to safeguard Arizona's waters from pollutants that come from an identifiable 

source. These permits protect groundwater and surface water quality by controlling discharges 

from industrial facilities such as SGS. The approval of the SGS individual APP was a rigorous 

and time intensive process. The SGS APP application was completed by professional 

environmental staff, and then reviewed by ADEQ?s professional staff. ADEQ?s review of the 

APP application determined that all requirements were achieved and the permit was issued. The 

most critical requirements of the permitting process include the “best available demonstrated 

control technology” (BADCT), a demonstration that Aquifer Water Quality Standards (AWQS) 

will not be violated in the aquifer at a point of compliance due to an inadvertent discharge at 

SGS. In addition, ADEQ?s professional staff completed a technical review of the entire 

application and the method chosen by SGS for providing financial assurance. TEP agrees with 

EPA?s two Reports to Congress and two final Regulatory Determinations under the Bevill 

Amendment, in that individual State regulatory program such as ADEQ?s AZPDES and APP 

programs are more than capable of achieving full protection of the environment and human 

health. It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified 

state programs to administer the rules. 

As previously mentioned, the APP permitting process is very rigorous and time intensive 

process. The process requires that applicants provide a demonstration that the BADCT will be 

used to ensure the greatest degree of discharge reduction from the facility and that the AWQS 

will not be violated as a result of inadvertent discharges from the facility. In addition, the 

applicant must demonstrate in cases where the level of pollutant in the aquifer already exceeds 

the AWQS at the time of permit issuance, that the aquifer will not be further degraded by the 

facility. The applicant is required to demonstrate that it has the necessary financial and technical 

capability to operate and close the facility in accordance with APP requirements. As you can see 

the APP is a robust program that should remain the principal authority for regulating CCRs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
974

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-29

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 5.6.4

Comment Excerpt Text:

Adequacy of RCRA-D Prime Option: 

We strongly agree that the RCRA Subtitle D-Prime option is adequately protective of human 

health and the environment. We note that EPA has been performing structural integrity and 

safety assessments of the surface impoundments identified in the 2009 CCR Surface 

Impoundment ICR and as of this writing none have been found to be unsatisfactory. We point to 

our Sherbume County (Sherco) generating plant as an example of welt-designed and well 

operated surface impoundments that received the highest possible rating for safety from EPA's 

engineering contractors after the 2009 assessment. The CCR disposal ponds at this facility are 

designed, constructed and inspected as dams, are equipped with liners and groundwater 

monitoring systems and are operated under state issued NPDES permits under a rigorous process 

that includes professional engineering certification of the design as well as independent state 

review an public notice as part of the permitting process. These ponds are also equipped with 

dewatefing systems and are designed to be permanently capped and closed when full, in the 

manner of a landfill, under the state solid waste program. All aspects of the facility are designed 

and operated under close state regulatory oversight with protection of human health and the 

environnaent in mind. These ponds are an example of the type of modern, state of the art 

disposal facility that would arbitrarily be forced to close prematurely absent the D-Prime option. 

This would force not only the construction of alternate (but not environmentally superior) drydisposal facilities, but also the complex and costly conversion of a well performing wet 

particulate & SO2 emission control system to a dry control system. We also note that under DPrime, existing CCR impoundments that do not already have ground water monitoring systems 

installed would be required to do so, and that all impoundments (as well as landfills) located in 

flood plains or unstable areas would need to close unless it can be shown that continued 

operations are be safe. This would ensure that any CCR impoundments having previously 

undetected environmental impacts or other design deficiencies would be identified so that 

corrective action can be taken

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
975

Comment Number: EPA-HQ-RCRA-2009-0640-08253-3

Organization1:Xcel Energy

Commenter1: Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 11.2.2

Comment Excerpt Text:

3 Alternative Regulatory Approaches Mentioned in the Preamble: 

As noted previously, we strongly support further development and adoption of the Subtitle "DPrime" option. We would not be opposed to the alternative that allowed individual states the 

option to first develop enforceable state rules under RCRA-D, similar to the MSW rules. We 

would, however, strongly oppose any automatic fall-back to a federal RCRA-C program for 

CCRs if the state failed to act in a timely manner or EPA failed to approve a state plan as 

submitted, for the reasons provided throughout these comments regarding the problems with a 

RCRA-C approach. We would similarly oppose any alternative discussed that involves RCRA-C 

regulation in any form as part of the alternative. However, we would not object to a RCRA-D 

Prime program that permitted EPA to enforce a federal RCRA-D rule in the event a state failed 

to meet its obligations.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08255-10

Organization1:LG&E and KU Energy LLC

Commenter1: Robert J. Ehrler on behalf of Dorothy E. O'Brien

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

VIII.Any New CCR Program Should Be Promulgated Under Subtitle D and Administered 

by the States Under EPA Oversight. 

LG&E/KU urges EPA to promulgate any new CCR rules under a Subtitle D approach. 

LG&E/KU specifically supports the D Prime option, with proper adjustments, that would allow 

existing surface impoundments that meet the proposed performance standards to operate until the 

end of their useful lifetimes. Continued operation of existing surface impoundments and landfills 

that meet appropriate performance standards would substantially mitigate the cost of complying 
976

with a new Subtitle D CCR regulatory program. Requirements for groundwater monitoring and 

corrective action, as necessary, will ensure that existing surface impoundments do not result in 

harm to the environment. It would serve no legitimate purpose to mandate the closure of existing 

surface impoundments or landfills which pose no threat to the environment. 

LG&E/KU requests that EPA fully analyze its authority under Subtitle D to establish a

regulatory framework providing for state implementation of the CCR program under the 

oversight of EPA. LG&E/KU believes that it is critical to establish a regulatory framework that 

builds on existing state CCR programs, such as the existing program administered by Kentucky, 

and allows the states to administer the new CCR program. Any program established by EPA 

should prevent inconsistency and duplication between state and federal CCR programs and avoid 

impractical regulatory mechanisms such as a “self-implementing” program. LG&E/KU is 

confident that EPA can identify sufficient authority under Subtitle D to establish a CCR program 

that provides for rational and efficient regulation of CCR surface impoundments and landfills

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

The commenter is further referred to Units V and IX of the preamble for discussions as to how 

this subtitle D rule will be implemented and enforced. The reader is also referred to Unit IV of 

the preamble for a discussion relating to the decision to regulate CCR under subtitle D of RCRA. 

In addition, Unit II of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08258-3

Organization1:Heartland Consumers Power District

Commenter1: Eli D. Eilbott

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Heartland believes that the D Prime option provides the most appropriate balance of EPA’s 

interests in protecting human health and the environment, promoting the legitimate reuse of 

CCRs and not imposing unnecessary or excessive costs on the generation and consumption of 

electricity in this country.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
977

Comment Number: EPA-HQ-RCRA-2009-0640-08258-8

Organization1:Heartland Consumers Power District

Commenter1: Eli D. Eilbott

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

At the same time, Heartland does support the D Prime option. Imposition of Subtitle D controls 

would provide more than adequate protection of human health and the environment for those 

CCRs that are placed in disposal units, while the D Prime provision reasonably would allow 

existing surface impoundments to continue to operate, and accept CCRs, for their useful life 

without having to close or install composite liners. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08266-4

Organization1:West Associates

Commenter1: A. Gwen Ekund on behalf of Starla Lacy

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Based upon review of the EPA proposals, WEST Associates supports the regulation of CCR 

under the Subtitle D “Prime” option with some important revisions. The Subtitle D “Prime” 

option avoids a flaw contained in the alternative Subtitle D option, which is the arbitrary 

requirement to retrofit all surface impoundments irrespective of their environmental 

performance. The Subtitle D “Prime” option correctly recognizes that existing CCR 

impoundments could be allowed to continue operating, provided they meet applicable 

groundwater monitoring standards to ensure performance in an environmentally sound manner. 

The Subtitle D “Prime” option would include all the components of the main Subtitle D option 

with the exception that the CCR surface impoundments could continue to operate for the 

remainder of their useful life. 

The Subtitle D “Prime” controls are largely the same as the proposed Subtitle C controls and 
978

provide a high level of protection to human health and the environment. Both a Subtitle C and 

Subtitle D standard correspond to an acceptable level of risk as established by the EPA. It is 

further noted that the Subtitle D “Prime” option would provide the same level of protection to 

human health and the environment as the Subtitle C option (i.e., both options being within EPA’s 

acceptable risk range). The Subtitle D “Prime” option also requires existing CCR surface 

impoundments to continue to be subject to groundwater monitoring and corrective action. 

Therefore, it has been suggested in previous industry testimony that the Subtitle D “Prime” 

option offers the same range of protection as the other proposals without the same significant and 

costly economic impacts.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08840-13

Organization1:Electric Power Generation Association

Commenter1: Douglas L. Biden

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

v. The Preferred Alternative: Subtitle D Prime Option

As mentioned previously, EPGA believes that regulation of CCRs under RCRA Subtitle D is the 

appropriate regulatory scheme and is consistent with the rulemaking record. In fact, EPGA 

believes that the additional option offered for discussion and comment by EPA in this proposed 

rulemaking, the "Subtitle D Prime" option, is the best choice. Under this alternative option, "the 

regulations would not require the closure or installation of composite liners in existing surface 

impoundments; rather, these surface impoundments could continue to operate for the remainder 

of their useful life. New surface impoundments would be required to have composite liners. The 

other co-proposed subtitle D requirements would remain the same." 75 Fed. Reg. at 35210. 

EPGA believes that existing surface impoundments that are operating in a safe and effective 

manner, and especially those that are currently operating under existing state authorities, should 

not be required to either be dredged completely and have a liner installed, or close. The cost of 

this over regulation of existing impoundments that have not exhibited signs or evidence of 

contamination or safety issues is not justified by EPA in this rulemaking. Those impoundments 

that already have or would be installing groundwater monitoring, as a requirement of the 

proposed rules, would continue to be protective of public health and the environment, and any 

future degradation would be detected through the groundwater monitoring and corrective action 

process, and would be remedied through the authorized state program. Further, additional 

structural integrity inspections, required to be implemented under the new rules, would insure 

that safety concerns were addressed for existing facilities. No additional protection would be 
979

achieved by the additional expenditures of dredging and lining, or by having to locate a new 

disposal facility to replace a closed impoundment

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08847-18

Organization1:Center for Progressive Reform, University of Maryland School of Law

Commenter1: Rena Steinzor

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

How the RIA Derives the Costs and Benefits of the Weakest Option

Finally, just as the RIA obtains the costs and benefits for the weak option by scaling down the 

estimates for the strong option by a certain amount, it obtains the benefits for the weakest option 

(subtitle “D prime”) by scaling down the estimates for the weak option. The weakest option is 

just like the weak option, except it would not require existing surface impoundments to close or 

install composite liners, instead allowing them to operate for the rest of their useful lives. 

[Footnote 349: Disposal of Coal Combustion Residuals from Electric Utilities; Proposed Rule, 

75 Fed. Reg. at 35,134.] The RIA assumes that the benefits of the weakest option will fall 

somewhere in between the benefits of the weak option and the baseline scenario.

In lieu of any sophisticated estimation, the RIA simply calculates the benefits of the weakest 

option as the midpoint values between the weak option and the baseline. [Footnote 350: Final 

Draft RIA, supra note 8, at 124, 141, 198-203.] Thus, the RIA concludes that the weakest option 

will avoid 30 percent of cancers and 23 percent of impoundment-failure cleanup costs. [Footnote 

351: Id. at 199.] It justifies this conclusion by predicting that states will in fact impose 

requirements on existing impoundments that go beyond the scope of the federal standards, due to 

the mere “presence of a new national rule accompanied by EPA support.” [Footnote 352: Id. at 

124.] The absurdity of such an assumption speaks for itself.

But more importantly, the simple midpoint calculation for the weakest option, combined with the 

lack of attention given to the option throughout the proposed rule and the analysis, confirms that 

the weakest option is presented only to make the weak option look like the moderate choice. Not 

only does the weak option avoid the disastrous stigma on beneficial use that plagues the strong 

option, and thus provide a much safer and more predictable range of net benefits, but it also 

provides substantially greater benefits than the barely-discussed weakest option. Thus, the

scaling and comparison of the regulatory options puts the finishing touches on the RIA‘s 

relentless campaign to drive the decision toward the weak option
980

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-08848-10

Organization1:American Coalition for Clean Coal Electricity (ACCCE)

Commenter1: Paul Bailey

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Accordingly, ACCCE strongly supports the D-Prime option, which would allow existing CCR 

surface impoundments to continue operating for the remainder of their useful lives when they are 

shown to be protective of groundwater and surface water. The D-Prime option correctly 

recognizes that existing CCR impoundments could be allowed to continue operating, provided 

they meet applicable groundwater monitoring standards to ensure that these units are performing 

in an environmentally sound manner. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08848-2

Organization1:American Coalition for Clean Coal Electricity (ACCCE)

Commenter1: Paul Bailey

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As discussed below, this alternative can adequately address any environmental risks that might 

result from the disposal of CCRs, while avoiding the many difficulties of regulating CCRs as a 

hazardous waste under Subtitle C of RCRA. In addition, the D-Prime option correctly recognizes 

that existing CCR surface impoundments should be allowed to continue operating, provided they 

pose no unacceptable human health or environmental risks and meet applicable regulatory 

standards to ensure their continued performance in an environmentally sound manner. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
981

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08865-5

Organization1:Geosyntec Consultants

Commenter1: John Seymour

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle D Prime 

Geosyntec supports the Subtitle D Prime proposal over the other proposals because the Subtitle 

D Prime proposal allows existing ash ponds to continue operating until their permitted disposal 

capacity has been reached, rather than be taken out of operation and retrofitted with a composite 

liner or be closed prematurely. We believe that this is the best regulatory approach, and the most 

practical approach, for the following reasons: 

1. Many existing ash ponds have been successfully operated for years or even decades. If a pond 

has been in compliance with applicable groundwater protection standards and its containment 

dikes/dams are shown to be structurally sound and stable against slope failure, then there is no 

technical reason that the pond should be forced to close before the end of its useful life. 

2. Closing these ponds (which are often very large, regularly larger than 100 acres) and securing 

alternate disposal capacity could easily take longer than the 7-year period required under the 

Subtitle D and Subtitle C proposals for pond closure. Permitting alternate disposal options alone 

can take 2 to 4 years. Under the Subtitle C proposal, the permitting requirements are greater and 

are expected to take longer than the Subtitle D proposals. 

3. In 1991, when the U.S. EPA approved the Subtitle D regulations for municipal solid waste 

landfills, it allowed existing facilities to be operated until their permitted disposal capacity had 

been reached, and did not mandate premature closure of such facilities. U.S. EPA reasoned that it 

was not in the nation’s best interests to prematurely close these landfills but, instead, should 

manage threats to the environment from these landfills through operational, monitoring, and 

post-closure care provisions. Geosyntec believes that the same logic can be applied to CCB 

ponds. 

In conclusion, prematurely closing a CCR disposal facility that is managed appropriately and is 

in regulatory compliance puts an unnecessary burden on the facility owner and the electricity 

customers that will pay for the closure and new facility costs without a commensurate benefit to 

the environment. The Subtitle D prime option allows site specific conditions to enable operation 

of the facility until the end of its useful life and protect human health and environment
982

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-4

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Furthermore, the Subtitle D Prime option would enable EPA to establish an environmentally 

protective program without crippling CCR beneficial use and imposing unnecessary costs, 

threatening jobs and increasing electricity costs 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-50

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: Keith Bastian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option, with the modifications discussed below, will allow EPA to 

establish a robust and environmentally protective program for coal ash disposal units without 

crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, 

threatening jobs, power reliability, and increasing electricity costs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
983

Comment Number: EPA-HQ-RCRA-2009-0640-09265-4

Organization1:CPS Energy

Commenter1: Michael M. Malone

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

CPS Energy recognizes and supports responsible handling of CCRs and recognizes the need to 

address safety issues and environmental protection requirements for CCR surface impoundments 

and landfills. To that end, CPS Energy supports the D-prime option or, in the alternative, anyone 

of several variations., but cannot support the EPA's other co-proposed options. The D-prime 

option allows continued use of existing impoundments and landfills in support of CCR recycling 

. CPS Energy believes that the D-prime option provides adequate health and environmental 

protection due to the groundwater monitoring, corrective action and dam safety requirements 

stipulated in D prime. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09273-8

Organization1:Iowa Department of Natural Resources (IDNR)

Commenter1: Wayne Gieselman

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.4.1.4.6

Comment Excerpt Text:

EPA Has Contradictory Position On Landfill Design. The Agency notes that recent risk 

assessments show CCR disposed of in unlined landfills and surface impoundments presents 

substantial risk to human health and the environment from releases of pollutants into surface and 

groundwater. Research also shows those risks are essentially eliminated when the CCR is 

disposed of in units with composite liners. Yet, the Agency has put forth a "D-Prime" approach 

that would not require existing surface impoundments to close or install composite liners. 

Instead, they could continue to operate for their useful life. This contradictory position only 

heightens states' apprehension regarding the Agency's justification of a Subtitle C approach.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
984

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09274-13

Organization1:RRI Energy Inc.

Commenter1: S. Dixon

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

V. The Preferred Alternative: Subtitle D Prime Option

As mentioned previously, RRI believes that regulation of CCRs under RCRA Subtitle D is the 

appropriate regulatory approach and is consistent with the rulemaking record. In fact, RRI 

believes that the additional option offered for discussion and comment by EPA in this proposed 

rulemaking, the "Subtitle D Prime" option, is the best choice. Under this alternative option, "the 

regulations would not require the closure or installation of composite liners in existing surface 

impoundments; rather, these surface impoundments could continue to operate for the remainder 

of their useful life. New surface impoundments would be required to have composite liners. The 

other co-proposed Subtitle D requirements would remain the same." 75 Fed. Reg. at 35210. RRI 

believes that existing surface impoundments that are operating in a safe and effective manner and 

especially those that are currently operating under existing state authorities, should not be 

required to either be dredged completely and have a liner installed, or close. The cost of this over 

regulation of existing impoundments that have not exhibited signs or evidence of contamination 

or safety issues is not justified by EPA in this rulemaking. Those impoundments that already 

have or would be installing groundwater monitoring, as a requirement of the proposed rules, 

would continue to be protective of public health and the environment, and any future degradation 

would be detected through the groundwater monitoring and corrective action process, and would 

be remedied through the authorized state program. Further, additional structural integrity 

inspections, required to be implemented under the new rules, would insure that safety concerns 

were addressed for existing facilities. No additional protection would be achieved by the 

additional expenditures of dredging and lining, or by having to locate a new disposal facility to 

replace a closed impoundment.

Even though RRI believes that the Subtitle D Prime option is the preferred alternative, there are a 

number of issues which we believe need to be addressed by EPA

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
985

Comment Number: EPA-HQ-RCRA-2009-0640-09282-28

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The subtitle “D-Prime” modification allows the continued operation of wet storage 

impoundments for the rest of their “useful life.” Based on the findings presented in the proposed 

language and current documented damage cases, these sites have a potential to cause, or are 

currently causing, groundwater contamination. Allowing facilities to continue operating these 

surface impoundments without having to properly close them or install liners does not provide 

the best option for the protection of human health and the environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-55

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The "D prime" option allows surface impoundments to continue to operate for their useful life 

without requiring them to install composite liners. Virginia DEQ is concerned about allowing 

unlined surface impoundments to continue to operate without an established closure date. When 

the Subtitle D regulations were issued by EPA, not all landfills in Virginia were equipped with 

liners. In 1993, state statutes were amended to allow landfills to continue to operate until their 

vertical design capacity was reached and required landfills to submit an estimated date of closure 

which was not enforceable by the state. After many years of the continued operation of these 

unlined landfills, some of these landfills were anticipating continuing operation for decades 

instead of their previously estimated closure date. The state statute was subsequently amended in 

2000 to establish a process for assigning closure dates to these unlined landfills. Unlined landfills 

were prioritized for closure based on potential threat to human health and the environment, and 

required to close in 2007, 2012, or 2020. Virginia DEQ's previous experience with allowing 

unlined landfills to continue operation until vertical capacity was reached causes the state to have 
986

concerns with the "D prime" option. EPA's proposal indicates 75% of surface impoundments are 

greater than 25 years old, with 10% being greater than 50 years. Allowing unlined surface 

impoundments to continue operation indefinitely does not provide protection to human health 

and the environment.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-26

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Pg. 35210, Alternative RCRA Subtitle D Approaches: The D prime option allows the continued 

operations of existing surface impoundments to the end of their useful life without the 

requirement of a composite liner. Would this also apply to existing CCR landfills?

Careful consideration should be given when defining “useful life.” For example if useful life is 

defined as at 100% capacity a facility conceivably could maintain a management unit at 90% 

perpetually thus preventing the requirement for additional actions triggered at closure.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09346-10

Organization1:American Public Power Association (APPA)

Commenter1: Theresa Pugh

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

APPA's Qualified Support of the Subtitle D "Prime" Option 
987

APPA endorses USWAG's qualified support of the development of Subtitle D non-hazardous 

waste regulations for CCRs under the proposed Subtitle D "Prime" option, with certain important 

modifications discussed in USWAG's testimony at the EPA public hearings on this proposal and 

in their comments. The Subtitle D "Prime" option, with the proper adjustments, will allow EPA 

to establish a robust and environmentally protective program for coal ash disposal units without 

crippling coal ash beneficial use and imposing unnecessary regulatory costs on power plants, 

threatening jobs, power reliability and increasing electricity costs. While some of USWAG's 

suggested modifications to the Subtitle D "Prime" proposal may necessitate issuance of a 

supplemental proposal, APPA supports this additional procedural step because it will help ensure 

promulgation of an environmentally protective regulatory program for CCRs consistent with the 

rulemaking record and the dictates of the Bevill Amendment. 

Specifically, APPA endorses USWAG's comment that the Subtitle D Program must include a 

mechanism for state implementation of the CCR rules. In addition, APPA agrees with the key 

problems identified by USWAG, including: 

Unrealistically short closure time frames for CCR disposal units; 

The unwarranted application of all location restrictions to existing CCR surface impoundments;

The inclusion of inappropriate constituents in the proposed groundwater monitoring program; 

The failure to allow for alternate liner systems; and 

The overly broad definition of "CCR Landfill" that inappropriately includes all "large scale fill 

operations." 

APPA also endorses the changes to the subtitle D Program outlined by the Large Public Power 

Council (LPPC), specifically:

APPA agrees that it is unduly burdensome to require facilities who have registered professional 

engineers on staff to incur the additional expense of hiring outside third parties to provide the 

certifications. APPA believes that a registered professional engineer on staff will provide the 

same unbiased services (as is a requirement of their professional standards and licensure) as an 

outside professional engineer (who will still be hired and paid by the utility). 

APPA agrees that in EPA's assessment of the Subtitle D co-proposal, EPA should assume that 

States will adopt, implement, and enforce any national criteria performance standards in a timely 

manner. Performance criteria issued by EPA under Subtitle D should allow the States sufficient 

time to carry out those responsibilities. States will faithfully execute their responsibilities under 

the cooperative statutory framework established by Congress. 

While APPA supports the adoption of non-hazardous waste rules for CCRs under Subtitle D of 

RCRA, specifically the aforementioned Subtitle D "Prime" option with USWAG's modifications, 

we also urge EPA to modify the Proposed Rule to better reflect CCR disposal options. 
988

A Modified D "Prime" Option would be More Effective and Practical than the Subtitle C and 

Subtitle D Proposals. A modified Subtitle D "Prime" rule, if developed properly with additional 

state regulatory oversight provisions, would be the best among EPA's three approaches for the 

regulation of CCR material. The D "Prime" rule would fully protect human health and the 

environment without harmfully impacting CCR beneficial use and unnecessarily regulating 

power plant operations. Regulating power plant operations would be impractical and a modified 

Subtitle D "Prime" will help reduce the consequential operations impacts of the proposed rule. 

Modified Subtitle D "Prime" will Help Ensure that Existing CCR Facilities are Safe. The 

information available, including EPA's rulemaking record, show that most CCR disposal 

facilities function on a day-to-day basis as they are designed and intended. This function 

produces no adverse impact to safety or the environment. EPA should not disrupt disposal 

facilities by superimposing retrofit and shut down requirements based on nonspecific, federally 

imposed standards without regard to in situ conditions. If EPA identifies a specific basis to 

conclude particular facilities are not performing adequately, EPA should focus its efforts on 

upgrading or closing those facilities, but EPA should allow others to continue to operate. Any 

new federal standards should be consistent with industry best practices. As such, EPA should 

also acknowledge possible security issues and information risk involved in the publication of 

structural integrity data and refrain from compulsory, universal publication of structural integrity 

information. 

Modified Subtitle D "Prime" Can Give EPA the Opportunity to Include Adaptive Approaches for 

Safety and Environmental Protection. The possible variables at any given location are infinite. It 

is not sensible to dictate, centrally and in advance, how exactly a particular plant should address 

specific issues at a given site. Under those terms probability of an inefficient solution is high. 

Plant operations, local geology, subsurface hydrology, precipitation patterns, proximity to 

populations and other potential receptors, and other factors can vary extensively from site to site. 

A modified Subtitle D standard could give the EPA opportunity to account for site-specific 

conditions. Subsequently, EPA should allow professionals that are trained to assess and respond 

to those issues to do their jobs in accordance with the best available scientific information and 

best industry practices. A federalist approach over-centralizes particular standards and practices 

that would make CCR management and disposal more expensive and difficult and, consequently, 

less effective. 

Subtitle D "Prime" is Consistent with Overall EPA Waste Management Goals. The EPA Should 

Continue Supporting Beneficial Uses. Beneficial CCR use is positive. It avoids the 

environmental impacts of placing materials in a landfill and mining naturally occurring materials 

as a substitute. Historically, EPA has been an active supporter of cooperative efforts to safely 

and effectively use CCRs. Accordingly, CCRs have been used beneficially for road building, 

agriculture, wallboard and many other purposes. The Leadership in Energy and Environmental 

Design (LEED) green building certification program, a premier promoter of sustainability in 

building design, awards substantial points for the use of materials made out of beneficially 

reused CCRs [Footnote 16: 

http://chapters.usgbc.org/montana/documents/MissoulaFCULEEDSheet-smal'.pdf]. EPA should 

listen to the voices of the experts and researchers who have studied the impacts of beneficial 

reuse. EPA should continue supporting safe and effective beneficial uses of CCRs and not list 
989

CCRs under EPA's hazardous waste authority. APPA believes that beneficial reuse is consistent 

with the EPA waste management hierarchy dating back to 1986

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule. The commenter is referred to the 

discussion in Unit VI of the preamble for a description of the technical requirements of the rule 

and how these requirements relate to the commenter’s concerns.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-3

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option, with modifications, will allow EPA to establish a robust and 

environmentally protective program for coal ash disposal units without crippling coal ash 

beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, 

power reliability, and increasing electricity costs.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-36

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Santee Cooper therefore urges EPA to adopt the D-prime option, which would allow existing 

CCR surface impoundments to continue to operate for the remainder of their useful lives without 

having to retrofit to meet the liner requirement. The D-prime option would be adequately 

protective of human health and the environment, because existing CCR surface impoundments 
990

would be subject to design and operating requirements proposed for new CCR surface 

impoundments.

Importantly, those requirements include the new groundwater monitoring requirements, which 

would ensure that any releases to groundwater are detected, and the new corrective action 

requirements, which would ensure that any such releases are properly remediated. In effect, the 

D-prime option would accomplish a site-specific evaluation of all existing CCR surface 

impoundments, and would tailor enforcement responses (including possible closure) to those 

units that actually present a current or potential threat to groundwater resources.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09349-7

Organization1:Santee Cooper

Commenter1: Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

If CCRs are regulated under Subtitle D, it is recommended that the "D Prime" approach be 

adopted because the other co-proposed subtitle D requirements would remain in effect, including 

those that address stability and groundwater quality, both of which were the major impetus 

behind the proposed rule. Under the "D Prime" approach, all existing surface impoundments still 

would be required to demonstrate stability in accordance with section 257.64 (unstable areas), or 

else close within five years after the effective date of the final rule in accordance with section 

257.65. Additionally, groundwater monitoring and corrective action procedures for existing 

surface impoundments would have to be implemented within one year after the effective date of 

the final rule, in accordance with sections 257.90 through 257.98.

The D Prime approach therefore will focus the financial resources of owners and operators on 

closing existing higher-risk surface impoundments, rather than resulting in across the board costs 

to either retrofit or close all surface impoundments without regard to whether such measures are 

necessary for the continued protection of human health and the environment. Further, the D 

Prime approach would lessen the degree to which the overall available capacity for CCR disposal 

will be impacted in the near term.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
991

Comment Number: EPA-HQ-RCRA-2009-0640-09351-9

Organization1:West Virginia Manufacturers Association (WVMA)

Commenter1:Karen S. Price

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Instead, EPA should follow-through on its 1993 and 2000 Regulatory Determinations and 

develop non-hazardous waste rules for CCRs under RCRA's Subtitle D program that recognize 

and do not duplicate existing state controls for these materials.

The preferable option is to adopt the Subtitle "D prime" option, which provides the greatest 

flexibility while still enhancing environmental protection. The EPA would have the appropriate 

authority to deal with out-of-compliance storage sites that fail to deal with water quality issues. 

Sites that operate well and in compliance could continue to provide economic storage options. 

As importantly, the beneficial use of coal ash would be maintained. The Subtitle "D prime" 

option is the most cost-efficient approach and will assure appropriate water quality.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09426-5

Organization1:Wisconsin Public Service

Commenter1: Connie K. Lawniczak

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

SUPPORT SUBTITLE D PRIME

Wisconsin Public Service supports the development of Subtitle D non-hazardous waste 

regulations for CCRs under the proposed Subtitle D “Prime” option, although with certain 

important modifications discussed below. The Subtitle D Prime option, with the proper 

adjustments, will allow EPA to establish a robust and environmentally protective program for 

coal ash disposal units without crippling coal ash beneficial use and imposing unnecessary 

regulatory costs on power plants, threatening jobs, power reliability, and increasing electricity 

costs.
992

There is no question that the Subtitle D Prime option would be fully protective of human health 

and the environment. Many of the Subtitle D option’s substantive requirements – including those 

under Subtitle D Prime – are the same as those under the Subtitle C option, including the 

technical and design standards for CCR liner systems, groundwater monitoring and associated 

corrective action, and surface impoundment integrity standards. Given that the Subtitle D 

Prime’s substantive controls are patterned in large part on the proposed Subtitle C controls, the 

overall level of protection to human health and the environment are equivalent under both 

options. Therefore, the Subtitle D Prime option would provide the same level of protection to 

human health and the environment as the Subtitle C option without the corresponding adverse 

impacts of the Subtitle C approach.

While Wisconsin Public Service supports the Subtitle D Prime option, a major shortcoming of 

this approach, as well as with the other Subtitle D alternatives, is the lack of any mechanism for 

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

the state programs meet or exceed the federal controls. Such an approach makes no practical 

sense, as it would result in parallel and redundant regulatory programs for the same materials 

and, more importantly, would directly contravene the Bevill Amendment’s directive that EPA 

avoid duplication of effort with pre-existing regulatory programs. EPA has previously 

recognized this point, as one of the Agency’s primary reasons for concluding in its 2000 final 

Regulatory Determination that CCRs do not warrant Subtitle C regulation was Congress' 

admonition in the Bevill Amendment against duplication of efforts by other federal and state 

agencies.

It is essential that any final Subtitle D rules for CCRs include a mechanism for qualified state 

programs to administer the rules in lieu of the self-implementing approach set forth in the 

proposal. EPA could readily develop a process for evaluating state CCR controls and 

determining whether state controls are no less stringent than the final Subtitle D controls (much 

like EPA does now in the case of municipal solid waste landfills under 40 C.F.R. Part 258). In 

those states that have qualifying controls for CCRs, EPA would allow the states to administer the 

controls to avoid the duplication of regulatory programs, with appropriate EPA backup. In this 

way, many of the self-implementing procedures in the Subtitle D approach could be eliminated 

as there would be a qualified state regulatory body with responsibility for ensuring compliance 

with the applicable requirements. This approach would allow for the requisite degree of state 

involvement in administration of the CCR rules that EPA concluded was appropriate in its 

Report to Congress and final Regulatory Determinations, and avoid duplication of regulatory 

controls as directed by the Bevill Amendment.

For the reasons discussed above, of the options presented, Wisconsin Public Service only 

supports regulation of CCR material under the proposed EPA Subtitle D Prime option, but with 

State authority and rules.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
993

Comment Number: EPA-HQ-RCRA-2009-0640-09618-3

Organization1:Waste Permits Division, Louisiana Department of Environmental Quality 

(LDEQ)

Commenter1:Don Caffery

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

For the most part, the standards for design and construction, groundwater monitoring, etc. in the 

proposed 40 CFR 257 Subpart D appear to follow a reasonable, commonsense approach toward 

preventing a reoccurrence of another Kingston incident. Specifically, the "D-prime" option 

would phase in the requirement for synthetic liners gradually, and would avoid the enormous, 

virtually immediate economic impact of a 5-year deadline. Again, we suggest that permitted 

impoundments, already built to engineering standards, should not be penalized by being put in 

the same category as gravel pits.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09728-1

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

1. IPSC supports the EPA in this significant effort to craft a workable, efficient, economically 

viable, and protective framework for managing and disposing of CCR. 

IPSC recognizes that due to the nation's long and proud history of advanced industrialization and 

power development, and the fact that most power plant sites are not as fortunately located as IPP, 

there have been concerns stemming from CCR disposal practices. What is striking is that given 

the immense volume of CCR and number of CCR locations, there has not been an environmental 

impact beyond the few small instances of record. IPSC believes this in and of itself points to the 

generally non-hazardous nature of CCR and the generally innocuous disposal practices of years 

past. 

Of obvious concern is the impact from failures such as the TVA's Kingston spill. We believe that 

although a tragedy, it was not the "toxicity" or any other hazardous waste-like characteristic 
994

(ignitability, corrosivity, or reactivity) of CCR-specific waste found in that impoundment that 

caused the ecological disaster, but the sheer size of the release. The ecological damage would 

have been severe whether is was just backyard mud. We must separate poor dam safety from the 

aspects of perceived but unproven threats of CCR-specific hazards. 

The EPA is correct in requiring this basic concept of dam safety to be mandated in its 

rulemaking, but would be just as effective under a Subtitle D structure. 

This is one example where the EPA can be instrumental in steering the future of CCR disposal 

practices yet still protect half of the nation's energy supply from interruption. IPSC supports the 

EPA in these efforts as long as the resulting regulatory oversight is balanced, workable, and 

economically viable while being protective. 

IPSC further believes this is also a clear example of why the EPA should implement CCR 

regulations under the D' (D prime) sub-option. The EPA has flexibility to offer such an option to 

overlay and complement existing State regulations that cover landfill and groundwater 

protections, such as Utah. Such flexibility would enhance effective management of CCR at more 

reasonable cost and yield comparable benefits and protection. 

IPSC voluntarily participates in the State's landfill permitting program for our CCR disposal. 

Although Utah's statutes currently can not force oversight of CCR disposal, IPSC supports 

statutory changes to allow such oversight. We have discussed with State officials this process 

and they are aware of our support.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09728-24

Organization1:Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.1.3 2.1.4

Comment Excerpt Text:

IPSC recommends that EPA: 

• Leave the 1993 and 2000 determinations in place; 

• Let the Bevill Amendment stand; 

• Adopt the D Prime option as follows: 
995

~ Allow existing impoundments to operate as described in the proposed rule, especially where 

States can have a protective program in place, and site-specific conditions warrant it; 

~ Where States have comparable Subtitle D programs: 

• Allow existing State landfill permitting regulations to have precedence, 

• Allow existing State groundwater protection standards to have precedence, 

• Allow existing State groundwater monitoring standards to have precedence, 

Allow existing State self reporting requirements to have precedence over company web based 

documentation; 

~ Allow States to adopt best practices under Subtitle D for site specific criteria; 

~ Overlay and institute Subtitle D in areas lacking at the State level. 

~ Let similar State financial assurance programs operate in place of CERCLA.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09815-2

Organization1:Indiana Office of Utility Consumer Counselor

Commenter1: A. David Stippler

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

The OUCC joins with the recommendations of various state environmental protection agencies, 

members of Congress, ash marketers and industries that use coal ash for a myriad of beneficial 

uses, and virtually every business sector that has contacted EPA on this matter, to urge the EPA 

to develop federal non-hazardous waste regulations for coal ash under the RCRA Subtitle D 

prime" option. This option provides the EPA sufficient authority to regulate sites that are out of 

compliance with water safety standards, yet allows the state's electricity providers the flexibility 

they need to manage coal ash efficiently, safely, and cost-effectively. As these different groups 

have made clear, such an approach would allow EPA to work with the states in implementing 

regulations that are fully protective of human health and the environment without negatively 

impacting the beneficial use of coal ash and causing an increase in energy prices at a time when 

the country can least afford it.
996

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09828-4

Organization1:Montana-Dakota Utilities Company (Montana-Dakota)

Commenter1: Abbie Krebsbach

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Montana-Dakota strongly urges that the EPA implement subtitle "D Prime" under RCRA as the 

final method of regulating CCRs and believes that this option is fully protective of human health 

and the environmental. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09885-18

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option will be fully protective of human health and the environment

Given that Subtitle D Prime’s substantive controls are patterned in large part on the proposed 

Subtitle C controls, the overall level of protection to human health and the environment are 

equivalent under both options. As EPA explains in describing the protective nature of the 

Subtitle D option, the agency has historically interpreted both the Subtitle C and Subtitle D 

statutory provisions as requiring it “to establish a comparable level of protection, corresponding 

to an acceptable risk level ranging between 1 x 10-4 to 1 x 10-6” and that EPA can establish 

even more stringent Subtitle D standards where it deems such regulations are appropriate. 

Therefore, the Subtitle D Prime option would provide the same level of protection to human 

health and the environment as the Subtitle C option without the corresponding adverse impacts 

of the Subtitle C approach.
997

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does 

not require all existing surface impoundments to close if they are operating in a manner that is 

fully protective of human health and the environment. This option does not include the automatic 

requirement to dredge and line all existing CCR surface impoundments within five years of the 

effective date of the regulations, or close these impoundments. Under the Subtitle D Prime 

option, existing CCR surface impoundments would continue to be subject to groundwater 

monitoring and corrective action requirements so that any threats from these units during their 

operating life would be detected and appropriate corrective action would be taken. Progress 

Energy agrees that CCR disposal units that are not fully protective must either take appropriate 

corrective action or close. There are many CCR surface impoundments which are perfectly safe; 

there is no reason why these units should not be allowed to continue operating

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09885-21

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option requires certain amendments to better reflect CCR disposal 

operations

While Progress Energy supports the Subtitle D Prime option and believes that it can be 

administered through qualified state programs with back-up EPA enforcement authority in 

under-performing states, there are fundamental flaws with elements of the proposed regulations 

in need of correction. Key problems include: unrealistically short closure timeframes for CCR 

disposal units; the unwarranted application of all location restrictions to existing CCR surface 

impoundments; the inclusion of inappropriate constituents in the proposed groundwater 

monitoring program; the failure to allow for alternate liner systems; and an overly broad 

definition of “CCR Landfill” that inappropriately includes all “large scale fill operations.” These 

and other issues are discussed below

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
998

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09994-1

Organization1:Department of Water and Power the City of Los Angeles (LADWP)

Commenter1: Eric J. Tharp and Mark J. Sedlacek

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

LADWP supports RCRA Subtitle 0 "Prime" option 

LADWP favors the development of federal regulations for CCRs under the RCRA Subtitle D 

non-hazardous waste program. Upon further evaluation of this alternative, LADWP believes the 

"Subtitle D Prime" option is the best option to regulate the materials. The RCRA Subtitle D 

Prime option will enable EPA to establish an effective environmentally protective program 

without hurting CCRs beneficial uses and imposing higher electricity costs to ratepayers. 

Under RCRA Subtitle D Sections 4005(c) and 4010(c), the EPA has statutory authority to 

promulgate federal regulations specifically designed for CCRs disposal units. These regulations 

would be directly enforceable by the states and the public under RCRA' s citizen suit provision. 

In addition, the EPA would also retain its imminent and substantial endangerment authority to 

take action against any CCRs units that posed a risk to human health or the environment. 

The development of Subtitle D regulations for CCRs under Section 4010 of RCRA offers a 

workable solution for the EPA, electric utilities, and the public. While this approach would likely 

require a supplemental proposal, it will provide the EPA with the enforcement authority it 

desires, while avoiding the adverse implications of Subtitle C. The command-and-control 

Subtitle C hazardous waste option would not be needed when the EPA can develop federally 

enforceable rules for CCRs under an equally protective. Subtitle D non-hazardous waste 

program.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.
999

Comment Number: EPA-HQ-RCRA-2009-0640-09994-5

Organization1:Department of Water and Power the City of Los Angeles (LADWP)

Commenter1: Eric J. Tharp and Mark J. Sedlacek

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Conclusions 

Subtitle D proposal would give the EPA authority to set performance standards with a narrower 

scope that would be protective of the environment. The standards would include: 

• Location restrictions of new CCR landfills or surface impoundments. 

• Closure of existing landfills or surface impoundments that are located in an unstable area. 

• Design criteria for new CCR landfills, and new and existing CCR surface impoundments. 

• Operating criteria for fugitive dust emission, run-on and run-off control, surface water 

discharge, surface impoundment inspection, and recordkeeping. 

• Groundwater sampling and analysis, detection and assessment monitoring and corrective 

action. 

LADWP believes that regulating the CCRs under Subtitle D will meet the intent and spirit of the 

federal RCRA statute of resource conservation through reduction, reuse, and recycling of 

materials.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule. The commenter is also referred to the 

discussion in Unit VI on the technical requirements being promulgated in this rule

Comment Number: EPA-HQ-RCRA-2009-0640-09996-2

Organization1:Midwest Coal Ash Association (MCAA)

Commenter1: Gary P. Haney

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
1000

Comment Excerpt Text:

Unlike the RCRA C approach, D Prime will establish an environmentally protective program for 

coal ash disposal units without crippling beneficial use and imposing unnecessary regulatory 

costs on power plants, threatening jobs and increasing electricity costs. We do not believe that 

the record to date, or any new information or data that has been added to the Docket justifies a 

change in the classification of coal ash, even for disposal.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-29

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.4.5.1.1 4.4.7.5.2 4.4.7.2 4.6.1.4 4.2.2

Comment Excerpt Text:

SRP urges EPA to adopt the non-hazardous waste, Subtitle D Prime approach to regulation of 

CCRs with the following important revisions or modifications: 

Allow alternatives to composite liners when site specific characteristics support such 

alternatives. 

Require closure, if necessary, only under a state approved program that provides a reasonable 

time frame. 

Allow an alternative list of groundwater monitoring parameters based on site specific conditions 

and approval by a registered professional. 

Include a mechanism for qualified state programs to administer the rules instead of the selfimplementing approach. 

Ensure an adequate time frame for facilities to come into compliance. 

The Subtitle D Prime option offers the same level of protection as the Subtitle C option without 

the significant and costly impacts of Subtitle C, while (i) allowing the continued use of 

environmentally acceptable existing CCR surface impoundments for the remainder of their 

useful lives; and (ii) supporting the continued beneficial use of CCRs. 
1001

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule. The commenter is also referred to the 

discussion in Unit VI of the preamble that discusses the technical requirements of the rule and 

the options EOPA considered in developing these requirements.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-4

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.2

Comment Excerpt Text:

SRP supports the regulation of CCRs under the Subtitle D Prime option with some important 

revisions. The Subtitle D Prime option avoids many of the major flaws contained in the 

alternative Subtitle D option; most importantly Subtitle D Prime would not require utilities to 

retrofit all surface impoundments irrespective of their environmental performance. The Subtitle 

D prime option correctly recognizes that existing CCR impoundments that meet applicable 

groundwater monitoring standards should be allowed to continue operating because such 

standards ensure performance in an environmentally sound manner. The Subtitle D Prime option 

would include all the components of the main Subtitle D option but would allow CCR surface 

impoundments to continue to operate for the remainder of their useful life. Although SRP 

supports Subtitle D Prime as the preferred option, there are certain important revisions necessary 

that are discussed further below and that were conveyed to EPA by USWAG's testimony at the 

EPA public hearings

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-5

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:
1002

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.6

Comment Excerpt Text:

In most key respects, the Subtitle D Prime controls are the same as the proposed Subtitle C 

controls and therefore provide a high level of protection to human health and the environment. 

Both the Subtitle C and the two Subtitle D options would ensure a level of risk within EPA's 

acceptable risk range of lxl0-4 to 1xl0-6. Because the Subtitle D Prime option requires existing 

CCR surface impoundments to continue to be subject to groundwater monitoring and corrective 

action, that option offers the same level of protection as the Subtitle C without the significant and 

costly impacts associated with the Subtitle C option. One of the largest costs and concerns with 

the main Subtitle D and Subtitle C options are the mandatory upgrading and/or closing of CCR 

surface impoundments that pose no threat to human health and the environment. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-7

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.6.1.4 4.5 4.4.8

Comment Excerpt Text:

Another important modification to the Subtitle D Prime and main Subtitle D options would be an 

extension of the timeframes for closure. Such an extension of time would ensure that CCR 

surface impoundments that must be closed are closed in an environmentally sound manner. SRP 

recommends that closure of CCR impoundments, if necessary, be conducted under a state 

approved program within a reasonable timeframe. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10165-2

Organization1:Indiana Municipal Power Agency (IMPA)

Commenter1: Jack F. Alvey
1003

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

IMPA believes that this would allow EPA to establish an environmentally protective program for 

coal ash disposal by maintaining impoundment integrity, water quality, and regulatory oversight 

without crippling coal ash beneficial reuse and imposing unnecessary regulatory costs on power 

plants, threatening jobs, power reliability, and increasng electricity costs. This would still allow 

existing coal ash impoundments to continue operating, provided that they meet applicable 

groundwater monitoring standards and are performing in an environmentally sound manner. It 

would also allow for the administration of the federal Subtitle D Rules for CCR by state 

regulatory programs and allow a more realistic extension of time for closure of certain CCR 

facilities.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10165-6

Organization1:Indiana Municipal Power Agency (IMPA)

Commenter1: Jack F. Alvey

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Development of the Subtitle D Prime option and continuing with EPA's non-hazardous 

classification of CCR will protect our communities from any effects of coal ash disposal. While 

this still adds some costs to power generators, Subtitle C regulation would result in significantly 

higher costs and adverse effects on the entire business community and more job losses

Response: The Agency is not promulgating the subtitle D prime option that was presented in

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10324-12

Organization1:Public Service Company of New Hampshire (PSNH)
1004

Commenter1: William H. Smagula

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Like US WAG, we note that even the proposed Subtitle D "Prime" language will require 

substantial modifications.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-45

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

B. The Subtitle D Prime Option Will Be Fully Protective Of Human Health And The 

Environment

USWAG supports the Subtitle D Prime option because it would ensure the development of fully 

protective controls for CCRs in an effective and practical manner. It would include all the 

elements of the primary “Subtitle D” option with the exception that it “would not require the 

closure or installation of composite liners in existing surface impoundments; rather, these surface 

impoundments could continue to operate for the remainder of their useful life.” 75 Fed. Reg. at 

35210.

As EPA itself acknowledges, many of the Subtitle D option‘s substantive requirements, 

including those under Subtitle D Prime, are the same as those under the Subtitle C option, 

including the technical and design standards for CCR liner systems, groundwater monitoring and 

associated corrective action, and surface impoundment integrity standards. 75 Fed. Reg. at 

35193. In fact, many of the provisions under the Subtitle D option “either correspond to the 

provisions EPA is proposing to establish for RCRA Subtitle C, or are modeled after existing 

Subtitle C requirements.” Id. In addition to borrowing from key elements of RCRA‘s existing 

standards for municipal solid waste landfills under 40 C.F.R. Part 258 – which the Agency found 

“would be expected to address the risks presented by the constituents in CCR wastes” – the 

proposed Subtitle D rules also considered and incorporated some of the self-implementing 
1005

elements of RCRA‘s hazardous waste interim status requirements into the Subtitle D proposal. 

Id.

Given that the Subtitle D Prime‘s substantive controls are patterned in large part on the proposed 

Subtitle C controls, the overall level of protection to human health and the environment are 

equivalent under both options. As EPA explains in describing the protective nature of the 

Subtitle D option, the Agency has historically interpreted both the Subtitle C and Subtitle D 

statutory provisions as requiring it “to establish a comparable level of protection, corresponding 

to an acceptable risk level ranging between 1 x 10-4 to 1 x 10-6” and that EPA can establish 

even more stringent Subtitle D standards where it deems such regulations are appropriate. Id. 

Therefore, the Subtitle D Prime option would provide the same level of protection to human 

health and the environment as the Subtitle C option without the corresponding adverse impacts 

of the Subtitle C approach.

One of the elements of the Subtitle D Prime option that makes it the better choice is that it does 

not require all existing surface impoundments to close if they are operating in a manner that is 

fully protective of human health and the environment. This option does not include the automatic 

requirement to dredge and line all existing CCR surface impoundments within five years of the 

effective date of the regulations, or close these impoundments. Id. at 35244 (proposed 40 C.F.R. 

§ 257.71(g)). Under the Subtitle D Prime option, existing CCR surface impoundments would 

continue to be subject to groundwater monitoring and corrective action requirements so that any 

threats from these units during their operating life would be detected and appropriate corrective 

action would be taken. USWAG agrees that CCR disposal units that are not fully protective must 

either take appropriate corrective action or close; however, there are many CCR surface 

impoundments that are perfectly safe. There is no reason why these units should not be allowed 

to continue operating.

Indeed, one of the largest cost elements of the primary Subtitle D option is the mandatory 

upgrading and/or closure of all CCR surface impoundments, irrespective of their environmental 

performance. According to the EOP Group‘s analysis, the costs to the utility industry of 

converting CCR wet handling systems to dry CCR handling systems under the Subtitle D option 

would be approximately $34 billion dollars. See EOP Report at 16 (attached as Appendix 19). 

[Footnote 33: From a strict analytical perspective, EOP also evaluated compliance costs under 

the Subtitle D option assuming no facilities converted from wet to dry handling, but instead 

constructed new impoundments meeting the Subtitle D composite liner and groundwater 

monitoring requirements. Under this scenario, Subtitle D compliance costs were estimated to be 

approximately $7 billion. Id. at 15. However, as EOP points out, this scenario is not realistic for 

a number of reasons including lack of land availability for constructing new impoundments, 

permitting concerns, local opposition and long-term liability. Id. at 15-16. In fact, EOP reports 

that, for these reasons, many utilities would undertake wet-to-dry conversions for all fly ash 

ponds and at least half of all bottom ash and FGD impoundments. Id. at 16. Indeed, even the $34 

billion Subtitle D cost estimate does not include the fully loaded costs of converting from wet-todry CCR management. ] There is no basis for the blanket imposition of this requirement and the 

associated staggering costs on existing units that are operating in a safe and effective manner. 

USWAG therefore supports the Subtitle D Prime option because it will ensure that CCR disposal 

practices are protective of human health and the environment without requiring the needless 
1006

closure of environmentally sound CCR impoundments.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-67

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

E. EPA’s Subtitle D Prime Criteria Do Not Comply independent With The RCRA 

Standard For Such Criteria Under Section 4004(a).

Under EPA’s subtitle D prime option, existing surface impoundments would not have to close or 

install composite liners but could continue to operate for their “useful” life. [Footnote 362: 75 

Fed. Reg. 35134.]. For all the reasons stated above, the subtitle D prime option is arbitrary, 

capricious and in violation of RCRA. Furthermore, its provision allowing the continued 

operation of unlined impoundments is unlawful for the reasons specified in Section VIII, supra. 

Continued operation of unlined surface impoundments, in many instances, poses the threat of 

imminent and substantial endangerment of human health or the environment, and thus is 

prohibited under section 7002(a)(1)(B) of RCRA. [Footnote 363: 42 U.S.C. § 6972(a)(1)(B).]. A 

detailed discussion of the present threats posed by surface impoundments is found in prior 

sections of these comments and in the expert reports attached as Appendices I, M and N. In 

addition, these comments address the need for EPA to use its authority pursuant to section 

7003(a) of RCRA to address coal ash impoundments that are posing a threat of imminent and 

substantial endangerment. [Footnote 364: 42 U.S.C. § 6873(a).].

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10621_DC-035-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Pamela Faggert

Commenter Type: Trade Association
1007

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Let me say at the outset that USWAG favors the development of federal regulations for CCRs 

under RCRA's Subtitle D non-hazardous waste program. The question for us is not whether to 

regulate, but how to regulate. We have evaluated the alternatives and believe that the "Subtitle D 

Prime" option is the best path forward. Unlike the Subtitle C approach, D Prime will establish a 

robust and environmentally protective program for coal ash disposal units without crippling coal 

ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs 

and increasing electricity costs. USWAG shares EPA's objective of having a federal regulatory 

program that ensures the safe disposal of CCRs; the D prime option will meet this objective.

One of the elements of the D Prime Option that makes it the preferred option is that it would not 

require the automatic closure of CCR surface impoundments that are operating in a manner that 

is fully protective of human health and the environment. We agree that disposal units that are not 

fully protective must either be upgraded or closed; however, there are many CCR surface 

impoundments which are perfectly safe. There is no reason why these units should not be 

allowed to continue operating. 

A major short-coming, however, of the Subtitle D and D Prime approach is the lack of any 

mechanism for the states to step in and administer the regulations. Where state regulatory 

programs meet or exceed the EPA proposed Subtitle D standards, it makes no sense to not allow 

these qualified state programs to administer the federal Subtitle D rules.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10634_DC-049-2

Organization1:PPL Corporation (PPL)

Commenter1:Craig S. Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.1.1 10.4.2
1008

Comment Excerpt Text:

A federal subtitle D, non-hazardous waste regulation, along the lines of Pennsylvania's 

successful program, would support beneficial use of this large volume mineral resource. 

Conversely, federal subtitle C hazardous waste regulation would severely limit - and most likely 

eliminate - beneficial uses, including cement industry applications and mine reclamation. 

Beneficial uses create thousands of jobs and provide their own significant environmental 

benefits. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10634_DC-049-5

Organization1:PPL Corporation (PPL)

Commenter1:Craig S. Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2

Comment Excerpt Text:

PPL strongly opposes federal subtitle C regulation, and instead requests that EPA regulate CCRs 

under the subtitle "D prime" option, including a modification that integrates with current state 

regulatory programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. This 

approach will create a reasonable and effective regulatory program that protects the environment, 

retains options for beneficial use, and preserves jobs, while not adversely impacting our 

economy.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 
1009

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10708_DEN-020-1

Organization1:PPL Montana, LLC

Commenter1:Steve J. Christian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2 5.6

Comment Excerpt Text:

Coal combustion residuals from these plants have been regulated effectively since 1980 as a nonhazardous waste by the Montana Department of Environmental Quality (DEQ) under Montana's 

Major Facility Siting Act. 

Colstrip, a zero-discharge facility, has some seepage from wastewater ponds. This was not 

unexpected based on seepage control measures implemented when the ponds were built. We 

have invested tens of millions of dollars in upgrades to wastewater facilities, including 

installation of synthetic liners and implementation of an innovative pasting process that solidifies 

coal ash scrubber sludge to help prevent future seepage. Additionally, we are capturing pond 

sewage and returning it to our waste water system. 

Recently, PPL Montana agreed to enter into an Administrative Order on Consent with Montana 

DEQ that establishes a comprehensive process to investigate and remediate groundwater seepage 

from wastewater facilities at the Colstrip plant. I would like to point out that coal combustion 

residuals from PPL Montana plants do not meet EPA's criteria for toxicity used to define 

hazardous waste. The level of metals is so low as to be non-detectable. The bottom line is that no 

impacts from heavy metals have been found in drinking water around the plant, and we continue 

to work with Montana DEQ on seepage issues.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10708_DEN-020-5

Organization1:PPL Montana, LLC
1010

Commenter1:Steve J. Christian

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2

Comment Excerpt Text:

In closing, PPL Montana strongly opposes Subtitle C hazardous waste regulation and requests 

that EPA regulate CCRs under the subtitle "D prime" option that integrates with current state 

regulatory programs. This will create a reasonable and effective regulatory program that protects 

the environment, retains options for beneficial use, and allows companies like PPL Montana to 

provide hundreds of good-paying, family-sustaining jobs.

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10726_DEN-038-4

Organization1:MidAmerican Energy Holdings Company

Commenter1:Cathy S. Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

In conclusion, PacifiCorp believes that EPA should reject a one-size-fits-all approach to what we 

believe would be an overly restrictive regulatory scheme without consideration of site-specific 

risks and, instead regulate CCR under RCRA Subtitle D “Prime.” While we recognize the 

sensitivity and concern associated with the catastrophic release of coal combustion residuals at 

the TVA Kingston plant, we believe that EPA’s proposed Subtitle C regulation goes too far in 

imposing significant restrictions on responsible companies that will have unintended 

consequences on the operation of electric generating facilities. The way to address the issue is by 

working with the state agencies to establish an appropriate and enforceable regulatory framework 

to address coal combustion residuals rather than imposing punitive regulations on those who 

manage their facilities responsibly. We believe that properly implemented Subtitle D Prime 

regulations will ensure protection of human health and the environment without adversely 

impacting CCR beneficial use. 
1011

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10732_DEN-044-1

Organization1:Platte River Power Authority

Commenter1:David Ussery

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

- Platte River prefers the development of federal regulations for CCRs under RCRA Subtitle D 

non-hazardous waste rules. 

- Additionally, EPA should select the Subtitle D Prime option as the appropriate course to pursue 

within the Subtitle D framework because it avoids the absolute requirement to retrofit all surface 

impoundments irrespective of their environmental performance. 

- This option correctly recognizes that existing CCR impoundments should be allowed to 

continue operating, provided that these units meet applicable groundwater monitoring and 

structural standards and thus are operating in an environmentally sound manner. 

- The State of Colorado must be given a role in implementation of the Subtitle D option. This 

will avoid duplication with existing State programs and provide the Subtitle D option with the 

direct permitting mechanism that EPA wants.

- EPA already has authority under Section 4010(c) to issue federally enforceable rules under 

Subtitle D for CCRs. 

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

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 
1012

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10738_DEN-050-2

Organization1:Intermountain Power Service Corporation

Commenter1:Jon A. Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

IPP favors the development of federal regulations for CCRs under RCRA’s Subtitle D 

nonhazardous waste program. We have evaluated the alternatives and believe that the “Subtitle D 

Prime” option is the best path forward. IPP shares EPA’s objective of having a federal regulatory 

program that ensures the safe disposal of CCRs; the D prime option will meet this objective 

without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power 

plants, threatening jobs, and increasing electricity costs.

Regulation of CCRs should be applied regionally, and state by state to provide optimal benefit on 

a case-by-case, site-by-site basis. EPA should therefore consider a mechanism for the states to 

administer the regulations.

Although a tragedy, the TV A Kingston spill was not caused by the so-called “toxicity” or any 

characteristic specific to CCR. Any bulk material dammed in the same circumstance would also 

fail. Poor dam design, construction, or maintenance should not be the basis for overreaching 

regulation.

One of the elements of the D Prime Option that makes it the preferred option is that it would not 

require the automatic closure of CCR surface impoundments that are designed and operating in a 

manner which is fully protective of human health and the environment, such as at IPP. We agree 

that disposal facilities that are not fully protective must either be upgraded or closed; however, 

there are many CCR surface impoundments which are perfectly safe. There is no reason why 

these units should not be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 
1013

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10740_DEN-052-3

Organization1:Arizona Electric Power Cooperative, Inc. (AEPCO)

Commenter1:Patrick Ledger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

For these reasons, Arizona Electric Power Cooperative supports the development of CCR 

regulation under the Subtitle "D Prime" option. We believe that this regulatory option will best 

accomplish the objective of ensuring that CCR disposal facilities, like those at Apache Station, 

will continue to be appropriately monitored to ensure they are operated in a safe manner. But, 

unlike the Subtitle C approach, the D Prime option would establish comprehensive, 

environmentally sound regulations for coal ash disposal, without imposing unreasonable and 

unnecessary costs on rural electric rate payers.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10747_DEN-059-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Let me say at the outset that USWAG supports the development of federal regulations for CCRs 

under RCRA's Subtitle D non-hazardous waste program. The question for us is not whether to 
1014

regulate, but how to regulate. Having evaluated the alternatives, the "Subtitle D Prime" option, 

with appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, D Prime 

will enable EPA to establish an environmentally protective program without crippling CCR 

beneficial use and imposing unnecessary costs on power plants, threatening jobs and increasing 

electricity costs.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10747_DEN-059-3

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.4 3.1.2

Comment Excerpt Text:

Moreover, one of EPA's stated concerns with the Subtitle D option is its perceived lack of federal 

enforceability under this approach. However, EPA does have the authority to issue federally 

enforceable Subtitle D rules for CCRs; it simply is not using that authority. I would refer EPA to 

the same RCRA provisions under which it issued federally enforceable Subtitle D rules for 

municipal solid waste landfills. The first provision is section 4010( c), which directs EPA to 

develop upgraded Subtitle D standards for facilities "that may receive" or may potentially receive 

"hazardous household wastes" or conditionally exempt small quantity generator wastes. A 

related provision is section 4005(c), which authorizes EPA to enforce these upgraded Subtitle D 

regulations in those states that fail to adopt the federal rules. EPA itself has described this 

authority as "significant in that it represents the first authority for EPA enforcement of regulatory 

requirements under Subtitle D." [Footnote 1: 53 Fed. Reg. 33314, 33383 (August 30, 1988)] 

CCR disposal facilities fall within the scope of EPA's authority under these provisions, as they 

are without question Subtitle D facilities that "may" accept household hazardous wastes and 

CESQG wastes, and clearly have the "potential" to receive such wastes.

The development of Subtitle D regulations for CCRs under section 4010 of RCRA offers a winwin option for EPA and the public. While this approach would likely require a supplemental 

proposal, it will ensure that EPA will "get it right:" providing the Agency with the enforcement 

authority it desires, while avoiding the unnecessary and adverse implications of Subtitle C. There 
1015

is simply no reason for EPA to pursue the Subtitle C approach when it can develop federally 

enforceable rules for CCRs under the less controversial, yet equally protective, Subtitle D nonhazardous waste program.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10751_DEN-063-2

Organization1:Arizona Public Service Company (APS)

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

A concern we have about both the Subtitle D and D Prime options, however, is the lack of any 

mechanism for states to step in and administer the regulations. Many states, including Arizona, 

have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's 

proposal. So, rather than throw the proverbial baby out with the bath water, APS encourages 

EPA to allow qualified state programs to administer federal Subtitle D rules.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10751_DEN-063-3

Organization1:Arizona Public Service Company (APS)

Commenter1:Scott Davis
1016

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

In Arizona, coal ash disposal units are regulated under the Department of Environmental Quality 

Aquifer Protection Program and the Department of Water Resources Dam Safety Program. 

Working in tandem, these programs impose stringent requirements to ensure that the 

environment and public safety are protected. I would suggest that EPA look to Arizona as a 

model for how CCR can and should be regulated by the states.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10751_DEN-063-5

Organization1:Arizona Public Service Company (APS)

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2

Comment Excerpt Text:

There are simply no sound environmental or economic reasons to pursue a Subtitle C approach 

when the Subtitle D Prime option could be tailored to provide federal enforceability under the 

same RCRA provisions EPA used to establish the Subtitle D rules for municipal solid waste 

landfills. These rules, implemented by the states, and backed up by direct EPA enforcement 

authority offer the same degree of protection without the attendant regulatory and cost burdens 

associated with Subtitle C.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.
1017

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10752_DEN-064-3

Organization1:Xcel Energy

Commenter1:Terry Coss

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1

Comment Excerpt Text:

Our third concern is that EPA's proposal discounts the important role that many States play 

today. Our states are very active in our landfill and pond operations, with programs that include 

permits & operating plans, inspections, and requirements for closure. State engineers, geologists 

and hydrologists are in the best position to implement such programs. To avoid duplication, we 

urge EPA to allow states with effective programs to continue to administer them under SubtitleD. Federal efforts should focus on the few states that may need improvement.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10777_DA-008-1

Organization1:American Electric Power (AEP)

Commenter1:David Miller

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D nonhazardous waste program. AEP believes the "Subtitle D Prime" option, if revised appropriately, 

would be the best path forward and establishes an environmentally protective program without 
1018

destroying CCR beneficial use and imposing unnecessary regulatory costs on power plants, 

threatening jobs and increasing electricity costs for customers.

The Subtitle D Prime option is preferred because it would not require the automatic closure of 

CCR surface impoundments that are operating in a manner that is fully protective of human 

health and the environment. AEP agrees that disposal units that are not fully protective must 

either be upgraded or closed; however, there are many CCR surface impoundments which are 

perfectly safe and protective of the environment. There is no reason why these units should not 

be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10779_DA-010-4

Organization1:Entergy Services, Inc. (Entergy)

Commenter1:Mark C. Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.2.2

Comment Excerpt Text:

Entergy has evaluated the alternatives contained in EPA’s proposed rule and believes that the 

“Subtitle D Prime” option is the best solution. Unlike the Subtitle C approach, D Prime will 

establish a robust and environmentally protective program for coal ash storage and disposal units 

without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power 

plants, threatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes 

that existing CCR impoundments with sound performance should be allowed to continue to 

operate.

However, Entergy feels that the Subtitle D Prime option, as written, requires improvements, 

including allowing for administration of the federal Subtitle D rules for CCRs by state regulatory 

programs to avoid duplication of federal and state efforts. This would also allow states to enforce 

compliance through a traditional permitting framework.

Entergy also believes that this option does not limit EPA’s enforcement authority since 4010(c) 

of RCRA and similar provisions clearly allow EPA to oversee state rules regulating solid wastes. 
1019

EPA already does this with MSW landfills and non-MSW landfills that may receive 

conditionally exempt small quantity generator hazardous waste. For these reasons, we ask EPA 

to select the Subtitle D prime option in its final rule.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10789_DA-020-3

Organization1:Entergy Services, Inc. (Entergy)

Commenter1:Mark C. Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Entergy has evaluated the alternatives contained in EPA’s proposed rule and believes that the 

“Subtitle D Prime” option is the best solution. Unlike the Subtitle C approach, D Prime will 

establish a robust and environmentally protective program for coal ash storage and disposal units 

without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power 

plants, threatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes 

that existing CCR impoundments with sound performance should be allowed to continue to 

operate.

However, Entergy feels that the Subtitle D Prime option, as written, requires improvements, 

including allowing for administration of the federal Subtitle D rules for CCRs by state regulatory 

programs to avoid duplication of federal and state efforts. This would also allow states to enforce 

compliance through a traditional permitting framework.

Entergy also believes that this option does not limit EPA’s enforcement authority since 4010(c) 

of RCRA and similar provisions clearly allow EPA to oversee state rules regulating solid wastes. 

EPA already does this with MSW landfills and non-MSW landfills that may receive 

conditionally exempt small quantity generator hazardous waste.
1020

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11015_CHA-050-1

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

First, Georgia Power supports protection of the environment and safe management of CCBs.

• Georgia Power remains committed to appropriate criteria to ensure dam safety and integrity 

that the public can rely on.

• Georgia Power also supports the regulation of CCBs in a manner that establishes reasonable 

minimum standards, while recognizing the variability of each site. EPA's proposed Subtitle D 

Prime approach recognizes that existing CCB impoundments should be allowed to continue 

operating with state oversight. 

Second, Georgia Power believes that State agencies should regulate CCBs.

• EPA's own conclusions in 1993 and 2000 recognize that states should continue to be the 

primary regulators of CCBs.

• Georgia, and other states, have operational experience and have provided effective oversight of 

CCBs through wastewater programs, landfill disposal, closure of surface impoundments and 

beneficial reuse.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 
1021

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11015_CHA-050-4

Organization1:Georgia Power

Commenter1:Chuck Huling

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

To conclude, Georgia Power supports dam integrity and a performance based approach for 

management of CCB units with state regulatory oversight and enforcement.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11022_CHA-057-5

Organization1:Santee Cooper

Commenter1:Jay Hudson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.7

Comment Excerpt Text:

II. Impact on the Cost of Power 

This proposed rule will impact the cost of power. The cost to handle coal combustion residuals 

as a hazardous waste under the C option will increase not only due to disposal costs, but also 

because of the actual handling at each station. The cost to close existing ash ponds will be high 

and the cost to permit and build new landfills will be high. These increases are passed through to 

the customers using the electricity. Ash which is currently wet sluiced to ash ponds will need to 

be converted to dry handling systems under both the C and D options. This type of conversion 

requires significant capital investment. 
1022

Under the D prime option, ash ponds that meet certain criteria can remain in operation beyond 

the closure requirements in the other options. This appears to be a reasonable way to reduce the 

cost burden while still being protective of the environment. 

We request that EPA carefully considers comments from industry with regard to actual 

projections of the cost.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11027_CHA-062-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Pat McCable

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 4.2.1 4.2.5

Comment Excerpt Text:

USWAG supports the "Subtitle D Prime" option, with appropriate adjustments, because of the 

options presented by EPA this is the one that best balances clean energy with affordability and 

reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures 

the safe disposal of CCRs; the "D Prime" option will meet this objective. 

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve 

the status quo under which EPA could only issue "guidance." This is not the case. Under a 

Subtitle D option, EPA would issue federal regulations specifically designed for CCR disposal 

units. These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision. EPA would also retain its imminent and substantial endangerment 

authority to take action against any CCR unit that posed a risk to human health or the 

environment.

We agree that disposal units that are not fully protective must either be upgraded or closed; 

however, there are many CCR surface impoundments which are perfectly safe. The "D Prime" 
1023

option will allow for development of a regulatory program that meets both of these objectives. 

A major short-coming, however, of either proposed Subtitle D approach is the lack of a 

mechanism for the states to step in and administer the regulations. Clearly, there are state 

regulatory programs that already meet or exceed the proposed Subtitle D standards. States with 

qualified programs should be given the option of administering the federal Subtitle D rules if 

they so desire.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11042_CHA-077-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Caroline Choi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2

Comment Excerpt Text:

Let me say at the outset that USWAG favors the development of federal regulations for coal ash 

under RCRA's Subtitle D non-hazardous waste program. The question for us is not whether to 

regulate, but how to regulate. Of the three options presented by EPA, the "Subtitle D Prime" 

option, with appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, D 

Prime will enable EPA to establish an environmentally protective program without crippling coal 

ash beneficial use and imposing unnecessary costs on power plants, threatening jobs and 

increasing electricity costs.

In fact, even EPA has agreed that hazardous waste regulation will result in excessive and 

unnecessary regulation. In its final Regulatory Determination for the four large volume coal ash 

waste streams where EPA concluded that hazardous waste regulation was not warranted for coal 

ash, the Agency found that the inflexible nature of the federal hazardous waste program would 

result in excess costs and unduly burdensome regulations for coal ash. Let me quote from the 

portion of EPA's final Regulatory Determination on this point: 

A Subtitle C system would require coal combustion waste units to obtain a RCRA Subtitle C 

permit (which would unnecessarily duplicate existing State requirements) and would establish a 
1024

series of waste unit design and operating requirements for these wastes, which would generally 

be in excess of requirements to protect human health and the environment. ...Since [coal ash] 

sites vary widely in terms of topographical, geological, climatological, and hydrological 

characteristics (e.g., depth to groundwater, annual rainfall, distance to drinking water sources, 

soil type) and the wastes potential to leach into the groundwater and travel to exposure points is 

linked to such factors, it is more appropriate for individual States to have the flexibility necessary 

to tailor specific controls to the site or region specific risks posed by these wastes. [Footnote 1: 

Id at 42477 (emphasis added).] 

We couldn't have said it better and nothing has changed since issuance of that Determination that 

alters this conclusion. 

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11045_CHA-080-1

Organization1:Duke Energy

Commenter1:George Everett

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Duke Energy strongly supports RCRA' s Subtitle D non-hazardous program to regulate CCRs 

and specifically the "D Prime" option.

Subtitle D would raise the bar nationally for surface impoundment safety and achieve the 

environmental protection we all seek without the exponential cost and damaging consequences to 

the beneficial reuse industry.

Subtitle D would require electric utilities to either remove solids from existing surface 

impoundments and retrofit them with a composite liner or cease receiving CCRs within five 

years of the effective date and close the unit. New impoundments could only be constructed with 

composite liners. Groundwater monitoring would be required for all new and old landfills to 

provide continual assessment of any possible groundwater impacts.
1025

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11182_CHI-013-5

Organization1:MidAmerican Energy Holdings Company

Commenter1:Cathy S. Woollums

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

Subtitle C regulation goes too far in imposing significant restrictions on responsible companies 

that will have unintended consequences on the operation of electric generating facilities. The 

way to address the issue is by working with the state agencies to establish an appropriate and 

enforceable regulatory framework to address coal combustion residuals rather than imposing 

punitive regulations on those who manage their facilities responsibly. We believe that properly 

implemented Subtitle D “Prime” regulations will ensure protection of human health and the 

environment without adversely impacting CCR beneficial use.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11183_CHI-014-1

Organization1:Ameren Corporation

Commenter1:Paul R. Pike
1026

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Ameren favors the development of federal regulations for CCRs under RCRA's Subtitle D 

nonhazardous waste program and believe that the "Subtitle D Prime" is the best path forward. D 

Prime will ensure that catastrophic releases such as occurred at the Kingston, Tennessee facility 

do not occur and that other types of damage cases associated with CCR surface impoundments 

and landfills are prevented. Regulating CCRs under this option will also allow for the sound 

science which the Agency state is one of its principles in its ultimate decision for coal ash 

disposal units. The other proposed regulatory options assume that all existing surface 

impoundments and landfills are causing damage, yet in the preamble the Agency observes "that 

nearly all new CCR landfills and surface impoundments are constructed with liners". We agree 

that disposal units that are not fully protective must either be upgraded or closed; however, there 

are many CCR surface impoundments which are perfectly safe. There is no reason why these 

units should not be allowed to continue operating.

Under the Subtitle D prime option, EPA would issue federal regulations specifically designed for 

CCR disposal units. These regulations would be directly enforceable by the states and the public 

under RCRA's citizen suit provision and violators would be subject to significant civil penalties. 

EPA would also retain its imminent and substantial endangerment authority to take action 

against any CCR units that posed a risk to human health or the environment. However, there 

currently is no mechanism for the states to step in and directly administer the regulations. We 

believe that the Agency needs a "State First" aspect so that where state regulatory programs meet 

or exceed the proposed standards; that these qualified state programs would be allowed to 

administer them with their existing requirements. illinois and Missouri have regulatory programs 

that meet or exceed many of the proposed requirements and should be allowed to administer 

their program without the dual regulation of a Federal program. Failure in establishing a single 

source for requirements would mean that the regulated community could have conflicting 

requirements imposed upon it leading to potential noncompliance issues.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

The Agency is not promulgating the subtitle D prime option that was presented in the proposed 

rule. The reader is referred to Units V and VI of the preamble for this rule for a complete 

discussion of the regulatory approach EPA is adopting as well as a comprehensive discussion of 

the technical requirements of the rule.
1027

Comment Number: EPA-HQ-RCRA-2009-0640-11261_CHI-032-1

Organization1:Illinois Environmental Regulatory Group (IERG)

Commenter1:

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

IERG supports appropriate regulation of coal combustion residuals from coal fired generation to 

protect public health and safety, and believes that it is best regulated as a non-hazardous waste 

under Subtitle D of the Resource Conservation and Recovery Act, rather than as a hazardous 

waste under Subtitle C. Regulation under Subtitle D will allow and encourage continued 

beneficial use of such materials where appropriate, as well as protection of public health and 

safety without undue cost or burden on industry, the states or the public. IERG is concerned that 

creating a sub-classification of “special” hazardous waste, as is proposed under Subtitle C, will 

not alleviate the stigma that will be placed on coal combustion byproducts, and will greatly 

reduce the environmentally sound beneficial use of such materials.

Under Subtitle D, regulations can be more easily tailored to the individual circumstances of each 

state, taking into account the geography and geology and overall regulatory structure. It can 

provide for appropriate construction and location standards, monitoring, and closure. As an 

example, ash ponds located in the relatively flat lands of Illinois may require very different 

designs than ponds located in the hills and mountains of other states. Similarly, depending on 

geology, existing facilities may be allowed to continue operation in some states with appropriate 

monitoring where that would be inappropriate in other locations. Requiring the closure of such 

facilities before the end of their useful life would be wasteful, and not provide commensurate 

benefit to public health or the environment. In such instances, IERG believes that the “Subtitle 

D-prime” option, described in the USEPA’s proposal, would be appropriate.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11275_CHI-047-1

Organization1:Indiana Energy Association

Commenter1:Stan Pinegar

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:
1028

The Indiana Energy Association submits that the appropriate route for U.S. EPA is to regulate 

CCRs under Subtitle D “Prime”, with modifications. Subtitle D Prime avoids many of the major 

flaws provided in the alternative Subtitle D option, including what we believe to be an arbitrary 

requirement to retrofit all surface impoundments regardless of their risk to the environment.

Subtitle D Prime provides a framework for the appropriate platform for ensuring 

environmentally sound management of CCS.

We do believe the Subtitle D Prime option needs to be improved to allow for administration of 

the requirements by state regulatory agencies and through the traditional permitting programs. In 

addition, the schedule for closure of certain CCR disposal units must be reasonably extended to 

reflect realistic challenges of closing large units.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11286_CHI-064-2

Organization1:Hoosier Energy Rural Electric Cooperative, Inc.

Commenter1:Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Hoosier Energy supports development of federal regulations for CCRs under RCRA’s Subtitle D 

non-hazardous waste program and believes that the “Subtitle D Prime” provides substantial 

safety for human health and the environment. In fact, the standards for landfill design under the 

EPA proposals are essentially equal under the subtitle D and subtitle C options. Statements have 

been made that subtitle D or D prime would be akin to the design for a municipal solid waste 

landfill and Hoosier concurs with that assessment. The fact is that municipal landfills are 

designed to insure that wastes of all types thrown in the trash by homeowners, are protective. 

This includes conditionally exempt wastes, mercury thermometers, fluorescent light tubes and 

CFLs, lighting ballasts and batteries. In fact, the design of municipal landfills recognizes the 

disposal, with an adequate safety factor, of materials from households that would fail testing for 

hazardous characteristics. However, that is not the case for CCRs, as they do not exhibit the 

hazardous waste levels for the same constituents.

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 
1029

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-11286_CHI-064-5

Organization1:Hoosier Energy Rural Electric Cooperative, Inc.

Commenter1:Michalene Reilly

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.2.2

Comment Excerpt Text:

Hoosier Energy asks EPA to look at the science and bring back the only possible fair and 

protective standard - regulation under Subtitle D, with an opportunity for states to achieve 

primacy on regulation and enforcement.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. This section of the preamble also 

includes a discussion of the statutory authority available to the Agency that dictates the type of subtitle 

D regulation the Agency can promulgate. The commenter is also referred to Unit IX of the preamble for 

a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management 

plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11287_CHI-065-2

Organization1:City Water Light & Power, Springfield, IL

Commenter1:Christine Zeman

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 2.1.6

Comment Excerpt Text:

If ash must be regulated under RCRA, only the Subtitle D-prime option should be considered. 

But USEPA should delay this rulemaking-the ash proposal is premature. Extensive Information 

Collection Requests (ICRs) on the details of ash ponds at Electric Generating Units (EGUs) are 

only now being completed. USEPA recently sent two different teams to our plant site to 

investigate our ash handling practices, our ash ponds and our landfill, but the results or reports 

from these two recent site investigations by USEPA have not yet even been completed, but 

should be part of the factual background on which the ash rule is based. Rulemaking without 

such detailed information, observations and analyses would be suspect, and wasteful of 

substantial public and private resources.
1030

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. This section of the preamble also 

includes a discussion of the statutory authority available to the Agency that dictates the type of subtitle 

D regulation the Agency can promulgate. The commenter is also referred to Unit IX of the preamble for 

a discussion on how EPA expects states to incorporate the CCR rules into state solid waste management 

plans. Contrary to the commenter’s statement the Agency has coordinated the development of this rule 

with the rule currently being developed by the Office of Water, for which the Agency solicited comment 

on their proposed rule. See preamble discussion in Unit III of the preamble. 

Comment Number: EPA-HQ-RCRA-2009-0640-11302_P-008-2

Organization1:Midwest Coal Ash Association (MCAA)

Commenter1:Gary P. Haney

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

We favor the development of federal regulations for coal ash under Subtitle D, and specifically 

believe that the “Subtitle D Prime” option is the best choice. Unlike the Subtitle C approach, D 

Prime will establish an environmentally protective program for coal ash disposal units without 

crippling beneficial use and imposing unnecessary regulatory costs on power plants, threatening 

jobs and increasing electricity costs. And, the D Prime option will include impoundment design, 

inspection and maintenance requirements that should prevent any future TVA type failures.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11423_P-154-4

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

PPL strongly opposes federal subtitle C regulation, and instead requests that EPA regulate CCRs 

under the subtitle "D prime" option, including a modification that integrates with current state 

regulatory programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. This 

approach will create a reasonable and effective regulatory program that protects the environment, 

retains options for beneficial use, and preserves jobs, while not adversely impacting our 

economy.
1031

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-11477_L-054-2

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

A major short-coming, however, of either proposed Subtitle D approach is the lack of a 

mechanism for the states to step in and administer the regulations. Clearly, there are state 

regulatory programs that already meet or exceed the proposed Subtitle D standards. States with 

qualified programs should be given the option of administering the federal Subtitle D rules if 

they so desire.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11485_L-066-1

Organization1:American Electric Power

Commenter1:Dana Sheets

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

AEP supports regulation of CCRs under RCRA's non-hazardous waste Subtitle D program and 

specifically under the Subtitle D Prime option. The difference between the Subtitle D proposal 

and D Prime is that the latter will not require the closure of surface impoundments that are being 

operated with no significant adverse effect on human health and the environment. The closure of 

surface impoundments (and hence conversion of the generating units to dry ash handling and 

construction of landfills) is a major cost associated with the proposal and minimizing this cost by 

allowing environmentally protective surface impoundments to continue to operate throughout 

their operating life will present the least cost impact to our customers. AEP does not support, nor 

does it think that the science justifies, regulation of CCRs under the RCRA Subtitle C hazardous 

waste rules. 
1032

The requirements for liners, groundwater monitoring, surface impoundment integrity, and 

corrective action are essentially the same under both Subtitle C and Subtitle D thereby providing 

the same level of environmental protection. It appears that the major hurdle for EPA concerning 

regulation under Subtitle D as opposed to Subtitle C is the perceived lack of Federal enforcement 

authority under Subtitle D. The EPA already has Subtitle D enforcement authority through the 

provisions of RCRA section 4010 (c) and 4005 (c) just as it did relative to the Subtitle D rules 

for Municipal Solid Waste Landfills in 40 CFR 258. Under this process, the States can be 

afforded the opportunity to operate the Subtitle D program either by demonstrating that the state 

rules already are as stringent as the Federal Subtitle D rules or by adopting additional regulations 

that include the minimum Federal Subtitle D standards. If State programs do not adopt the 

minimum Federal standards, the USEPA could step in with direct enforcement powers. 

This is a win-win situation for all involved. The EPA has the Subtitle D enforcement authority 

that it wants and the States would be afforded the opportunity to run the program.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11568_L-016-1

Organization1:American Electric Power (AEP)

Commenter1:Richard Hayek

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D nonhazardous waste program. AEP believes the "Subtitle D Prime" option, if revised appropriately, 

would be the best path forward and establishes an environmentally protective program without 

destroying CCR beneficial use and imposing unnecessary regulatory costs on power plants, 

threatening jobs and increasing electricity costs for customers.

The Subtitle D Prime option is preferred because it would not require the automatic closure of 

CCR surface impoundments that are operating in a manner that is fully protective of human 

health and the environment. AEP agrees that disposal units that are not fully protective must 

either be upgraded or closed; however, there are many CCR surface impoundments which are 

perfectly safe and protective of the environment. There is no reason why these units should not 

be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 
1033

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11572_L-020-1

Organization1:Utility Solid Waste Activities Group (USWAG)

Commenter1:Dan Riedinger

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3 3.1.2 4.2.4

Comment Excerpt Text:

AS USWAG has testified at the last six hearings, the question for us is not whether to regulate 

CCRs, but how to regulate CCRS. We continue to believe, after listening to all the testimony, 

that “Subtitle D Prime” option, with appropriate adjustments, is the best path forward. 

USWAG appreciates that there are major differences of opinion regarding this rulemaking, but 

we are concerned that unless EPA is able to forge a consensus position, the question of whether 

and how to regulate CCRs will become a protracted battle in Congress and the courts. USWAG 

continues to believe, however, that a consensus position can be reached that meets the 

fundamental objectives of EPA and the varying stakeholder that is the development of federally 

enforceable standards for CCRs that are protective of human health and the environment. As 

EPA has pointed out, the substantive standards between the Subtitle C and Subtitle D standards 

are essentially identical. Both would provide for the safe management of coal ash through the use 

of liner systems, groundwater monitoring, and corrective action. 

Despite the similarities between the two options, opponents of Subtitle D approach are concerned 

that the states will not vigorously enforce the Subtitle D regulations; thus, they want EPA 

enforcement authority. Opponents of the Subtitle C option, including USWAG, are concerned 

that subjecting CCRs to hazardous waste regulation will result in excessive regulation, drive up 

energy costs and cripple beneficial use. 

Notwithstanding these differences, USWAG believes that there is a path forward that would 

address the concerns of most the views reflected in this room and, most importantly, will ensure 

the successful implementation of a protective CCR regulatory program in a timely manner. 

Specifically, we continue to believe that EPA can develop federally enforceable Subtitle D 

controls for CCRs under the same authorities that it has used to develop federally enforceable 

Subtitle D controls for municipal solid wastes. USWAG has already provided EPA with the 

background of this approach so I won’t go into the details here. In short, however, we believe 

that EPA can use its authorities under the combination of RCRA sections 4010 and 4005 to 

direct the states to establish Subtitle D controls and permit requirements for CCR disposal 

facilities and to step in and directly enforce those Subtitle D regulations if the states fail to do so. 

EPA itself has acknowledged that these sections of RCRA are unique in that they provide EPA 

with federal enforcement authorities for Subtitle D rules. [Footnote 1: 53 Fed. Reg. 33314, 33383 

( August 30, 1988)]
1034

The truth is that this approach – having EPA direct the states to implement federal controls and 

stepping in if the states fail to do so - is not fundamentally different than how the Subtitle C 

option would be implemented, though this Subtitle D approach would be implemented on a 

much quicker time schedule than would any Subtitle C option. It makes no sense to risk the 

downsides of the Subtitle C option when EPA can achieve essentially the same results without 

these risks under a federally enforceable Subtitle D option. This rulemaking is too important for 

EPA not get it right; therefore, we urge the Agency to be creative in using its existing authorities 

in Subtitle D to issue federally enforceable Subtitle D rules for CCRs. Such a result would be 

“win-win” for all involved. 

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: EPA-HQ-RCRA-2009-0640-11689_K-111-1

Organization1:American Electric Power (AEP)

Commenter1:Rick Hayek

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

AEP supports the development of federal regulations for CCRs under RCRA’s Subtitle D nonhazardous waste program. AEP believes the “Subtitle D Prime” option, if revised appropriately, 

would be the best path forward and establishes an environmentally protective program without 

destroying CCR beneficial use and imposing unnecessary regulatory costs on power plants, 

threatening jobs and increasing electricity costs for customers.

The Subtitle D Prime option is preferred because it would not require the automatic closure of 

CCR surface impoundments that are operating in a manner that is fully protective of human 

health and the environment. AEP agrees that disposal units that are not fully protective must 

either be upgraded or closed; however, there are many CCR surface impoundments which are 

perfectly safe and protective of the environment. There is no reason why these units should not 

be allowed to continue operating.

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 
1035

Comment Number: TRANS-ARL-0029-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Pam Faggert

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Let me say at the outset that USWAG favors the development of federal regulations for CCRs 

under RCRA Subtitle D, nonhazardous waste program. The question for us is not whether to 

regulate, but how to regulate. We have evaluated the alternatives and believe that the Subtitle D 

prime option is the best path forward. Unlike the Subtitle C approach, D prime will establish a 

robust and environmentally protective program for coal ash disposal units without crippling coal 

ash beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs, 

and increasing electricity costs. USWAG shares the EPA's objective of having a regulatory 

program that ensures the safe disposal of CCRs and the D prime option will meet this objective. 

One of the elements of the D prime option that makes it the preferred option is that it would not 

require the automatic closure of CCR surface impoundments that are operating in a manner that 

is fully protective of human health and the environment. We agree that disposal units that are not 

fully protective must either be upgraded or closed. However, there are many CCR surface 

impoundments which are perfectly safe. There is no reason why these units should not be 

allowed to continue operating

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: TRANS-CHI-0066-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

USWAG supports the development of federal regulations for coal ash under RCRA's Subtitle D 

non- hazardous waste program. Of the three options that EPA has presented, the Subtitle D 

Prime option with appropriate adjustments is the best path forward. Unlike the Subtitle C 

approach, D Prime which is directly enforceable by the states and by citizens will enable EPA to 

establish environmentally protective programs across the states without crippling coal ash 
1036

beneficial use and imposing unnecessary regulations on power plants, threatening jobs and 

increasing electricity costs

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CHI-0090-1

Organization1:Indiana Energy Association

Commenter1:Stan Pinegar

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Indiana Energy Association submits that the appropriate route for USEPA is to regulate 

CCRs under Subtitle D Prime with modifications. Subtitle D Prime avoids many of the major 

flaws provided in the alternative Subtitle D option, including what we believe to be an arbitrary 

requirement to retrofit all surface impoundments regardless of the risk to the environment. 

Subtitle D Prime provides a framework for an appropriate platform for ensuring environmentally 

sound management of CCRs. 

We do believe the Subtitle D Prime option needs to be improved to allow for administration of 

the requirements by state regulatory agencies and through the traditional permitting programs. In 

addition, the schedule for closure of certain CCR disposal units must be reasonably extended to 

reflect realistic challenges of closing large units.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0036-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Pat McCabe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

USWAG supports the Subtitle D Prime option, with appropriate adjustments, because of the 

options presented by EPA this is the one that best balances clean energy with affordability and 

reliability. USWAG shares EPA's objective of having a federal regulatory program that ensures 

the safe disposal of CCRs. The D Prime option will meet this objective. 

Opponents of a Subtitle D option persist on incorrectly stating that this would merely preserve 

the status quo under which EPA could only issue guidance. This is not the case. Under a Subtitle 

D option, EPA would issue federal regulations specifically designed for CCR disposal units. 
1037

These regulations would be directly enforceable by the states and the public under RCRA's 

citizen suit provision. EPA would also retain its imminent and substantial endangerment 

authority to take action against any CCR unit that posed a risk to human health or the 

environment. 

We agree that disposal units that are not fully protective must either be upgraded or closed. 

However, there are many CCR surface impoundments which are perfectly safe. The D Prime 

option will allow for development of a regulatory program that meets all objectives. 

A major shortcoming, however, of either the proposed Subtitle D approach is the lack of a 

mechanism for the states to step in and administer the regulations. Clearly, there are state 

regulatory programs that already meet or exceed the proposed Subtitle D standards. States with 

qualified programs should be given the option of administering the federal Subtitle D rules if 

they so desire

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: TRANS-CLT-0061-1

Organization1:Duke Energy

Commenter1:George Everett

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Duke Energy strongly supports RCRA's Subtitle D nonhazardous program to regulate coal ash 

residuals, and specifically the D Prime Option. Subtitle D would raise the bar nationally for 

surface impoundment safety and achieve the environmental protection we all seek without the 

exponential costs and damaging consequences to the beneficial reuse industry. What would 

Subtitle D do? It would require electric utilities to either remove solids from existing surface 

impoundments and retrofit them with a composite liner or cease receiving residuals within five 

years of the effective date and close the unit. New impoundments could only be constructed with 

composite liners. Groundwater monitoring would be required for all new and old landfills, 

provide continual assessment of any possible groundwater impacts. 

Utilities have safely managed residuals and hundreds of surface impoundments for decades. In 

the Carolinas, Duke Energy has had a robust monitoring maintenance inspection program for all 

of its ash basins since 1976. This involves daily observations, monthly inspections by plant staff, 

plus additional inspections anytime there are two inches of rain in 24 hours. Additional 

inspections by a licensed professional engineer and inspection every five years by an 

independent engineer have now been replaced due to new legislation in North Carolina with 

inspections by the North Carolina Dam Safety Program. This program was in place well before 

EPA's inspections currently underway
1038

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-CLT-0062-4

Organization1:Progress Energy

Commenter1:Barbara Capola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA's proposal to not regulate CCRs for beneficial use is appropriate for a regulatory program 

under Subtitle D Prime. Most utilities endeavor to market as much of their CCRs as possible. 

This is better for the environment, the land or pond disposal, and provides unique and valued 

materials for many manufactured products, including high-quality cement and wallboard. 

EPA should be aware that the beneficial use marker for CCRs is susceptible to market variations, 

which limits reliance on beneficial uses. Today, the supply of fly ash for cement and concrete 

and the supply of synthetic gypsum for wallboard far exceeds market demand. We need to find 

ways to increase the consumptions of CCRs in these markets. 

There have been many key drivers to reuse volumes. In 2008, over 30 percent of the nearly 61 

million tons of CCRs used were in other market applications. With the proper engineering design 

controls and quality assurance programs in place, Progress Energy supports other market 

applications. While we are working diligently to beneficially use CCRs, there will remain a 

significant quantity of CCRs that must be disposed of in landfills. 

It should be considered that even with strong efforts to beneficially use CCRs, a permanent 

disposal option at reasonable cost will still be needed.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-CLT-0066-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Caroline Choi

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Let me say, at the outset, that the question for us is not whether to regulate, but how to regulate. 

USWAG favors the development of federal regulations for coal ash under RCRA's Subtitle D 

nonhazardous waste program. Of the three options presented by EPA, the Subtitle D Prime 

option, with appropriate adjustments, is the best path forward. Unlike the Subtitle C approach, D 
1039

Prime will enable EPA to establish an environmentally protective program without crippling coal 

ash beneficial use and imposing unnecessary costs on power plants, threatening jobs and 

increasing electricity costs. Even EPA has agreed that hazardous waste regulation will result in 

excessive and unnecessary regulation. In its final regulatory determination for the four large 

volume coal ash waste streams where EPA concluded that hazardous waste regulation was not 

warranted for coal ash, the agency found that the inflexible nature of the federal hazardous waste 

program would result in excess costs and unduly burdensome regulations for coal ash. 

Let me quote from the portion of EPA's final regulatory determination on this point: A Subtitle C 

system would require coal combustion waste units to obtain a RCRA Subtitle C permit, which 

would unnecessarily duplicate existing State requirements and would establish a series of waste 

unit design and operating requirements for these wastes, which would generally be in excess of 

requirements to protect human health and the environment. Since coal ash sites vary widely in 

terms of topographical, geological, climatological, and hydrological characteristics, for example, 

depth to groundwater, annual rainfall, distance to drinking water sources, soil type, and the 

wastes potential to leach into the groundwater and travel to exposure points is linked to such 

factors, it is more appropriate for individual states to have the flexibility necessary to tailor 

specific controls to the site or region-specific risks proposed by these wastes. 

We couldn't have said it better, and nothing has changed since issuance of that determination that 

alters this conclusion. 

Moreover, while we agree that steps must be taken to prevent accidents like that which occurred 

at TVA's Kingston facility from happening again, even EPA has found that coal ash being 

recovered from that site can be safely disposed of in a RCRA Subtitle D nonhazardous waste 

facility. The coal ash from the accident that was the impetus for this rulemaking proceeding is, 

with EPA's explicit approval, being safely disposed of in a Subtitle D nonhazardous waste 

facility. And just last week, the Tennessee Department of Health, in conjunction with the Federal 

Agency for Disease Registry and Toxic Substances, issued a final public health assessment 

concluding that the coal ash from the accident did not result in groundwater contamination nor 

result in ambient releases of ash above levels of concern. 

USWAG supports federal Subtitle D controls for coal ash, including dam integrity standards to 

help prevent future coal ash releases like that which occurred at TVA from happening again

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-CLT-0131-2

Organization1:Duke Energy

Commenter1:Bill McCabe

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Subtitle D Prime option, with appropriate adjustments, best balances clean energy with 

affordability and reliability. Adopting the Subtitle D Prime option will achieve the same long-
1040

term environmental goals on a more realistic time frame. With a reasonable, science-based 

approach, we can design federal regulations that ensure the safe management of CCRs without 

significantly raising costs for customers and jeopardizing national electric reliability

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-CLT-0161-3

Organization1:Duke Energy

Commenter1:Allan Stowe

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Another significant flaw is that the environmental groups have not consulted with the very states 

whose programs they allege are deficient. These states contest these allegations and charge that 

the environmental groups have improperly characterized the effectiveness of their state controls. 

Assuming the allegations have any factual basis, USWAG and Duke Energy support a Subtitle D 

program that will involve groundwater monitoring controls specifically designed to detect any 

contamination before it moves off-site. Duke Energy supports federal regulations that will 

actually address the potential threats that the environmental groups allege may occur from these 

sites. 

If Duke Energy determines an impact to groundwater has occurred at any of its facilities, the 

appropriate regulatory agency is notified and proper next steps taken to ensure public safety. 

In North Carolina, Duke Energy voluntarily initiated ash basin groundwater monitoring more 

than six years ago and has taken substantial measures to reduce or eliminate potential 

environmental impacts

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-DAL-0016-1

Organization1:American Electric Power

Commenter1:David Miller

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:
1041

AEP supports the development of federal regulations for CCRs under RCRA's Subtitle D nonhazardous waste program. AEP believes the Subtitle D prime option, if revised appropriately, 

would be the best path forward and establishes an environmentally protective program without 

destroying CCR beneficial use and imposing unnecessary regulatory cost on power plants, 

threatening jobs, and increasing electricity costs for our customers. 

The Subtitle D prime option is preferred because it would not require automatic closure of CCR

service impoundments that are operating in a manner that is fully protective of human health and 

the environment. AEP agrees that disposal units that are not fully protective must either be 

upgraded or closed. However, there are many CCR service impoundments which are perfectly 

safe and protective of the environment. There is no reason why these units should not be allowed 

to continue operating.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: TRANS-DAL-0086-3

Organization1:Entergy Corporation

Commenter1:Mark Bowles

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Entergy has evaluated the alternatives contained in EPA's proposed rule and believes that the 

Subtitle D Prime option is the best solution. Unlike the Subtitle C approach, D Prime will 

establish a robust and environmentally protective program for coal ash storage and disposal units 

without crippling coal ash beneficial use and imposing unnecessary regulatory costs on power 

plants, threatening jobs and increasing electricity costs. The Subtitle D Prime option recognizes 

that existing CCR impoundments with sound performance should be allowed to continue to 

operate. 

However, Entergy feels that the Subtitle D Prime option, as written, requires improvements, 

including allowing for administration of the federal Subtitle D rules for CCRs by state regulatory 

programs, to avoid duplication of federal and state efforts. This would also allow states to 

enforce compliance through a traditional permitting framework. 

Entergy also believes that this option does not limit EPA's enforcement authority since 4010(c) 

of RCRA and similar provisions clearly allow the EPA to oversee state rules regulating solid 

waste. EPA already does this with municipal solid waste landfills and non-municipal solid waste 

landfills that may receive conditionally exempt small quantity generator hazardous waste. 

For these reasons, we ask the EPA to select the Subtitle D Prime option in its final rule. 

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 
1042

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: TRANS-DEN-0013-1

Organization1:Platte River Power Authority

Commenter1:David Ussery

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Platte River prefers the development of federal regulations for CCRs under RCRA Subtitle D, 

nonhazardous waste rules. Additionally, EPA should select the Subtitle D prime option as the 

appropriate course to pursue within the Subtitle D framework because it avoids the absolute 

requirements to retrofit all surface impoundments irrespective of their environmental 

performance. 

This option correctly recognizes that existing CCR impoundments should be allowed to continue 

operating provided that these units meet applicable groundwater monitoring and structural 

standards and thus are operating in an environmentally sound manner. 

The State of Colorado must be given a role in implementation of the Subtitle D option. This will 

avoid duplication with existing state programs and provide the Subtitle D option with the direct 

permitting mechanism the EPA wants. 

EPA already has authority under Section 4010(c) to issue federally enforceable rules under 

Subtitle D for CCRs. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0022-2

Organization1:Intermountain Power Service Corporation

Commenter1:Jon Finlinson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Although a tragedy, the TVA Kingston spill was not caused by the so-called toxicity or any 

characteristic specific to CRR. Any bulk material dammed in the same circumstance would also 

fail. Poor dam design, construction, or maintenance should not be the basis for overreaching 

regulation. 

One of the elements of the D prime option that makes it the preferred option is that it would not 

require the automatic closure of CCR surface impoundments that are designed and operating in a 

manner which is fully protective of human health and the environment, such as at IPP.
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We agree that disposal facilities that are not fully protective must either be upgraded or closed. 

However, there are many CCR surface impoundments which are perfectly safe. There is no 

reason why these units should not be allowed to continue operating. 

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0026-2

Organization1:Arizona Electric Power Cooperative

Commenter1:Patrick Ledger

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

For these reasons, Arizona Electric Power Cooperative supports the development of CCR 

regulation under the Subtitle D prime option. We believe that this regulatory option will best 

accomplish the objectives of ensuring that CCR disposal facilities, like those at Apache Station, 

will continue to be appropriately monitored to ensure they are operated in a safe manner. 

But unlike the Subtitle C approach, the D prime option would establish comprehensive 

environmentally sound regulations for coal ash disposal without imposing unreasonable and 

unnecessary costs on rural electric rate payers.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: TRANS-DEN-0039-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Jim Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Let me say at the outset that USWAG supports the development of federal regulation for CCRs 

under RCRA's Subtitle D nonhazardous waste program. The question is not whether to regulate 

but now to regulate. 

Having evaluated the alternatives proposed, the Subtitle D prime option, with appropriate 

adjustments, is the best path forward. Unlike the Subtitle C approach, D prime will enable EPA 

to establish an environmentally protective program without crippling beneficial use, imposing 

unnecessary costs on power plants, threatening jobs, and increasing electricity costs. 

Opponents of the Subtitle D option persist in incorrectly stating that this would merely preserve 

the status quo under which the EPA can only issue guidance. This is not correct. 
1044

Under the Subtitle D option, EPA would issue federal regulations specifically designed for CCR 

disposal units. These regulations would be directly enforceable by the states and the public under 

RCRA's citizen suit provision and violators would be subject to significant civil penalties. 

EPA would also retain its imminent and substantial endangerment authority to take action 

against any CCR unit that poses a risk to human health or the environment. Ask any utility that 

has been the subject of a RCRA citizen suit, with injunctive relief and civil penalties in the 

balance, whether it views these regulations as mere guidance. These are real regulations with 

teeth, and it is misleading to suggest otherwise

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: TRANS-DEN-0049-1

Organization1:Arizona Public Service Company

Commenter1:Scott Davis

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Let me begin by stating that APS supports the development of federal regulations for CCRs 

under RCRA's Subtitle D nonhazardous waste program, and we believe that Subtitle D prime is 

the appropriate option. Not only will this approach create an environmentally protective program 

for coal ash disposal, it will do so without crippling beneficial use and imposing unnecessarily --

unnecessary regulatory costs. 

A concern we have about both Subtitle D and D prime options, however, is the lack of any 

mechanism for states to step in and administer the regulations. Many states, including Arizona, 

have regulatory programs in place that meet or exceed the Subtitle D standards in EPA's 

proposal. 

So rather than throw the proverbial baby out with the bath water, APS encourages EPA to allow 

qualified state programs to administer federal Subtitle D rules. 

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

Comment Number: TRANS-KNX-0024-1

Organization1:Haley & Aldrich
1045

Commenter1:Chris Hardin

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Haley & Aldrich supports development of federal regulations for CCRs. And that's defined as 

coal combustion residuals, or in many cases products, under RCRA Subtitle D, non-hazardous 

waste program. We agree with the EPA substantive standards in Subtitle D and Subtitle C are 

essentially the same. They both provide for safe management of coal ash through the use of liner 

systems, groundwater monitoring and corrective action. 

However, Subtitle D will provide a regulatory platform that would accomplish these goals 

without severely impacting CCR beneficial reuse, threatening jobs, and increasing electricity 

costs for customers by imposing unnecessary costs on the utility industry. 

We agree with the EPA that CCR units that are not fully protected must be updated, upgraded, or 

closed. However, CCR impoundments that can be demonstrated to be safe and protective of the 

environment should be allowed to continue operating. We believe that the Subtitle D prime 

option with appropriate adjustments is the best pass forward and will enable EPA to establish an 

environmentally-protective program that meets the objectives of EPA, namely enforceable 

standards of CCRs, that are protective of human health and the environment. 

Response: The Agency acknowledges and appreciates the comment. The commenter is referred to 

Units IV and V of the preamble discussion for the Agency’s rationale for promulgating this subtitle D rule 

for the disposal of CCR in landfills and surface impoundments. The commenter is also referred to Unit IX 

of the preamble for a discussion on how EPA expects states to incorporate the CCR rules into state solid 

waste management plans. 

The commenter is also referred to Units IV and VI for a complete discussion of the beneficial 

use aspects of the rule. 

Comment Number: TRANS-KNX-0055-1

Organization1:American Electric Power

Commenter1:Matt Powell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

AEP agrees with the views of the bipartisan group of 165 members of Congress, 45 U.S. 

Senators, majority of states, multiple federal agencies, municipal and local governments, CCR 

marketers, and beneficial users, and many other third parties which have maintained that 

regulating CCRs under RCRA's hazardous waste program is simply regulatory overkill. AEP 
1046

supports regulation of CCR under RCRA's non-hazardous waste Subtitle D program, and 

specifically under the Subtitle D option. 

The difference between the Subtitle D proposal and D prime is that the latter will not require the 

closure of surface impoundments that are being operated with no significant adverse effect on 

human health and the environment. The closure of surface impoundments, and hence, the 

conversion of the generating units to dry handling, and construction of landfills is a major cost 

associated with the proposal, and minimizing this cost by allowing environmentally protective 

surface impoundments to continue to operate throughout their operating life would present the 

least cost impact to our customers. 

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: TRANS-LVL-0002-1

Organization1:Utility Solid Waste Activities Group

Commenter1:Dan Riedinger

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

As USWAG has testified the last six hearings, the question for us is not whether to regulate 

CCRs but how. We continue to believe, after listening to all testimony, that the Subtitle D Prime 

option, with appropriate adjustments, is the best fast forward. 

USWAG appreciates that there are major differences of opinion regarding the rulemaking, but 

we're concerned that unless EPA is able to forge a consensus position, the question of whether 

and how to regulate CCRs will become a protracted battle in Congress and perhaps the courts. 

USWAG continues to believe, however, that a consensus position can be reached that meets the 

fundamental objectives of EPA and the varying stakeholders; that is, the development of 

federally enforceable standards for CCRs that are protective of human health and the 

environment. 

As the EPA has pointed out, the substantive standards between the Subtitle C and D approaches 

are essentially identical. Both would provide for the safe management of coal ash through the use 

of liner systems, groundwater monitoring and corrective action. 

Despite the similarities between the two options, opponents of Subtitle D are concerned that the 

states will not vigorously enforce the Subtitle D regulations, thus, they want EPA enforcement 

authority. 

Opponents of Subtitle C, including USWAG, are concerned that subjecting CCRs to hazardous 

waste regulation will result in excessive regulation, drive up energy costs and cripple beneficial 

use. USWAG believes that there is a path forward that would address the concerns of most of the 

views reflected in this room, and most importantly, will ensure the successful implementation of 
1047

a protective CCR regulatory program in a timely manner. Specifically, we continue to believe 

that EPA can develop federally enforceable Subtitle D controls for CCRs under the same 

authorities that it has used to develop federally enforceable Subtitle D controls for municipal and 

solid wastes. We believe that EPA can use its authorities under the combination of RCRA 

Sections 4010 and 4005 to direct the states to establish Subtitle D controls and permit 

requirements for CCR disposal facilities and to step in and directly enforce those Subtitle D 

regulations if the states fail to do so. This approach also would be implemented on a much 

quicker time schedule than would any Subtitle C option. It makes no sense to risk the downsides 

of Subtitle C when EPA can achieve essentially the same results without those risks under 

federally enforceable Subtitle D option. 

This rulemaking is too important for EPA not to get it right. Therefore, we urge the agency to be 

creative in using its existing authorities in Subtitle D to issue federally enforceable Subtitle D 

rules for CCRs. Such a result would be a win-win for all involved

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: TRANS-LVL-0015-1

Organization1:Duke Energy

Commenter1:Ron Ehlers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Duke Energy strongly supports developing federal regulations for coal combustion residuals 

under RCRA's Subtitle D non-hazardous waste program. Opponents of Subtitle D say this option 

is a free ride for utilities. However, the reality is Subtitle D significantly raises the bar in terms of 

retrofitting and closing CCR impoundments, including accelerated closure schedules that are 

impractical and not feasible the way they are currently proposed. The Subtitle D proposal 

requires that unlined impoundments no longer be used five years after the rule is finalized. It also 

requires that impoundments be officially closed within 180 days after the impoundment -- the 

closure begins. Both of these time frames are unrealistic, and closing these ponds safely, from an 

engineering perspective, will be val -- very challenging. 

The cost to comply with requirements to install liners in existing unlined impoundments will 

drive most plants with these types of impoundments to either retire or convert to dry CCR 

handling. New landfills will have to be sited, designed and constructed prior to beginning pond 

closure. Given the number of new landfills that would be required, it is unlikely that these could 

be readied in time. 

If these were hazardous waste landfills, as required under a Subtitle C hazardous waste program, 

even more time would be needed, assuming that a hazardous waste landfill could successfully be 

sited and permitted. Also, the immediate and significant increase in demand for dry handling 

systems across the country will result in lengthy procurement and installation time frames. This 
1048

makes the five-year deadline impractical and would adversely impact power plant availability. 

The time needed to de-water the unit, construct a cap, to install the necessary storm water 

controls, while complying with our NPDES permits, would also require more than 180 days. The 

EPA should consider closure plans to start within 30 days of the final receipt of waste, but the 

implementation of the closure plans and completion of construction should be determined by 

best engineering practices. 

The Subtitle D Prime option, with appropriate adjustments, best balances clean energy with 

affordability and reliability. Adopting the Subtitle D Prime option will achieve the same longterm environmental goals on a more realistic time frame. With a reasonable, science-based 

approach, we can design federal regulations that ensure the safe management of CCRs without 

significantly ra -- raising the cost for customers and jeopardizing national electric reliability

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: TRANS-LVL-0044-1

Organization1:Duke Energy Indiana

Commenter1:Bryan Walsh

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Duke Energy Indiana supports the Subtitle D Prime option, with appropriate adjustments. This is 

because of the three options presented by EPA, this is the one that best balances clean energy 

with affordability and reliability. Duke Energy shares EPA's objective of having a federal 

regulatory program that ensures the safe disposal of CCRs. The D Prime option will meet this 

objective. 

Opponents of the Subtitle D option persist on incorrectly stating that it would merely preserve 

the status quo under which EPA could only issue guidance. This is not the case. Under a Subtitle 

D option, EPA would issue federal regulations specifically designed for CCR disposal units. 

These regulations would be directly enforceable by the states and the public under RCRA's 

Citizen Act Provision. EPA would also retain its imminent and substantial endangerment 

authority to take action against any CCR unit that posed a risk to human health or the 

environment. 

We agree that the disposal units that are not fully protective must be upgraded and must be 

regulated. However, there are many CCR surface impoundments which are perfectly safe. The D 

Prime option will allow for development of a regulatory program that meets both of these 

objectives
1049

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: TRANS-LVL-0045-5

Organization1:Duke Energy

Commenter1:Debbie Nispel

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Duke Energy supports a Subtitle D program that will involve groundwater monitoring controls 

specifically designed to detect any contamination from the CCR waste management units before 

contamination moves offsite. If Duke determines an impact to groundwater has occurred at one 

of if -- its facilities, the appropriate federal or state regulatory agencies are notified, and we work 

with those regulators in determining the appropriate steps to be taken to remediate the impact to 

groundwater. 

Further, Duke has taken measures to reduce or eliminate any known risks for potential future 

impacts at the other Duke facilities

Response: The Agency is not promulgating the subtitle D prime option that was presented in 

the proposed rule. The reader is referred to Units V and VI of the preamble for this rule for a 

complete discussion of the regulatory approach EPA is adopting as well as a comprehensive 

discussion of the technical requirements of the rule.

Comment Number: TRANS-LVL-0054-1

Organization1:American Electric Power

Commenter1:Dana Sheets

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

. AEP supports regulation of CCRs under RCRA's non-hazardous waste Subtitle D program, and 

specifically under the Subtitle D Prime option. The difference between Subtitle D and D Prime is 

that the latter will not require the closure of surface impoundments that are being operated with 

no significant adverse effect on human health and the environment. 

The closure of surface impoundments and, hence, conversion of the generating units to dry ash 

handling and construction of landfills is a major cost associated with the proposal. 
1050

And minimizing this cost by allowing environmentally-protective surface impoundments to 

continue to operate throughout their operating life will present the least-cost impact to our 

customers. 

AEP does not support, nor does it think, that the science justifies, regulation of CCRs under the 

RCRA Subtitle C hazardous waste rules. The requirements for liners, groundwater monitoring, 

surface impoundment integrity, and corrective action are essentially the same under both Subtitle 

C and Subtitle D, thereby providing the same level of environmental protection. 

It appears that the major hurdle for EPA concerning regulation under Subtitle D as opposed to 

Subtitle C is a perceived lack of federal enforcement authority under Subtitle D. The EPA

already has Subtitle D enforcement authority through the provisions of RCRA Section 4010 and 

4005, just as it did relative to the Subtitle D rules for Municipal Solid Waste Landfills. 

Under this process, the states can be afforded the opportunity to operate the Subtitle D program 

either by demonstrating that the state rules already are as stringent as federal Subtitle D rules or 

by adopting additional regulations that include the minimum federal standards. If state programs 

do not adopt the minimum federal standards, the US EPA could step in with direct enforcement 

authority. 

This is a win-win situation for all involved. The EPA has the Subtitle D enforcement authority 

that it wants, and the states will be afforded the opportunity to run the program. 

In addition, the stigma and liabilities associated with CCR reuse applications under the 

hazardous waste Subtitle C option that would, in effect, kill the ash-utilization industry, along 

with the many thousands of associated jobs, would be avoided. 

Finally, under Subtitle D, cost impacts to utility customers would be minimized while protecting 

human health and the environment.

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.

Comment Number: TRANS-LVL-0055-4

Organization1:Vectren Corporation

Commenter1:Angila Retherford

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

Vectren supports EPA's objective of having a federal regulatory program that ensures the safe 

disposal of CCRs. As a result, Vectren supports the Subtitle D Prime option with appropriate 

adjustments. Because of the three options presented by EPA, this is the option that best balances 

clean energy with affordability and reliability. 

We believe that this regulatory option will best accomplish the objective of ensuring that CCR 

disposal facilities will be appropriately monitored to ensure that they're operated in a safe and 
1051

environmentally-sound manner, and continue to fully support and incentivise the beneficial reuse 

of CCRs. But unlike the Subtitle C approach, the D Prime option would establish comprehensive 

regulations for coal-ash disposal without imposing unreasonable and unnecessary costs on 

electric rate payers. 

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.

Comment Number: TRANS-PIT-0006-3

Organization1:PPL Corporation

Commenter1:Craig Shamory

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2

Comment Excerpt Text:

PPL strongly opposes federal Subtitle C regulation, and instead requests that EPA regulate 

CCR's under the Subtitle D prime option, including a modification that integrates with current 

state regulatory programs such as Pennsylvania's Residual Waste and Dam Safety Regulations. 

This approach will create a reasonable and effective regulatory program that protects the 

environment, retains options for beneficial use, and preserves jobs, while not adversely 

impacting our economy.

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.

Comment Number: TRANS-PIT-0056-1

Organization1:Midwest Coal Ash Association

Commenter1:Gary Haney

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.1.3

Comment Excerpt Text:

We favor the development of federal regulations of coal ash under Subtitle D, and specifically 
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believe that the Subtitle D Prime option is the best choice. Unlike Subtitle C, D Prime will 

establish an environmentally protective program for coal ash disposal units without crippling 

beneficial use and imposing unnecessary regulatory costs on power plants, threatening jobs and 

increasing electricity costs. The Prime D option will include impoundment design, inspection 

and maintenance requirements that should prevent any future TVA type failures.

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.

Comment Number: TRANS-PIT-0059-1

Organization1:American Electric Power

Commenter1:Steven Orenchuk

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.2 4.1.3

Comment Excerpt Text:

It is my professional opinion that the US EPA's proposed regulation of CCRs under the RCRA 

Subtitle C hazardous waste rules is excessive and unwarranted. The correct approach for US 

EPA to take is to regulate CCRs under the Subtitle D Prime option. 

Regulation of CCRs under the RCRA Subtitle C hazardous waste rules is not worth the 

incremental environmental gain versus the extreme financial costs which will accompany this 

level of regulation. It is necessary that in any type of rulemaking, U.S. EPA is cognizant of the 

broad economic impacts which there will be in response to such an undertaking. Protection of 

human health and the environment from the disposal of CCRs regulated under the Subtitle D 

Prime option is more than acceptable considering the potential threat that these materials pose. In 

addition to providing the necessary protection of human health and the environment, the Subtitle 

D Prime option will bear the least cost on the end user of coal-fired electric generation, i.e. 

customers like you and I. 

Since the promulgation of CCR regulations under the Subtitle D Prime option affords the 

necessary level of protection of human health and the environment without imposing the 

unnecessary costs associated with over regulation, how can U.S. EPA in good conscience 

propose a set of regulations as irresponsible as the Subtitle C hazardous waste regulations for 

managing CCR disposal? This type of action is illogical and represents the wasteful allocation of 

the American public's financial resources. 

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.
1053

Section 4.5.2 - EPA solicits comment on alternative approach using CCR SI assessment 

program instead of phase-out of CCR SIs, and effectiveness of annual SI assessments in 

ensuring structural integrity of CCR SIs over long term (35210, 35223)

Total Number of Submissions: 6

Total Number of Comments: 6

Comment Number: EPA-HQ-RCRA-2009-0640-04022-4

Organization1:

Commenter1:Larry D. Conley

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

Subtitle "D Prime" addresses the real concerns, such as impoundment integrity, water quality 

implications, and regulatory oversight. This rule still allows existing coal ash impoundments to 

continue operating if they are operating in an environmentally sound manner.

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-160

Organization1:Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The Commonwealth endorses this approach. The structural integrity dike inspections should 

remain with the department's Division of Water, where the current expertise resides. RCRA was 

not intended to address structural integrity.

Response: The Agency acknowledges and appreciates the comment. 
1054

Comment Number: EPA-HQ-RCRA-2009-0640-06300-51

Organization1:Southern Company on behalf of itself and its four subsidiaries: Alabama 

Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power 

Company

Commenter1: Chris M. Hobson

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

2. Surface Impoundments That Do Not Pose a Threat to Human Health or the Environment 

Should Be Able to Operate for Their Entire Useful Lives. 

A modified Subtitle D Prime approach would allow EPA’s CCB regulation to address 

appropriate construction, maintenance, and management of CCB impoundments. At a minimum, 

additional CCB closure regulations should be implemented only on a unit-specific, risk-based 

basis that allows effective disposal units to operate for the remainder of their useful lives. For 

additional discussion, see Parts II.B.1 and 7 above, regarding Subtitle D. The discussion is 

equally applicable to the Subtitle C proposal. Closure requirements should be risk-based and sitespecific. 

A one-size-fits-all approach to closure of existing facilities under any regulatory option would 

not be appropriate given the disparity in size, location, and design that exists among CCB surface 

impoundments and landfills, not only nationwide, but also within individual utilities. Instead,

closure requirements should be tailored to individual units under closure plans based upon 

information obtained through groundwater monitoring and other risk assessment techniques. 

Such site-specific closure would be not only more efficient and practical than adherence to the 

rigid Subtitle C unit-closure regulations, it would also be more effective because it would allow 

for utilization of the latest technologies and techniques to assure appropriate closure. 

Furthermore, EPA is proposing to apply the Subtitle C hazardous waste rules retroactively to 

previously closed and/or inactive CCB surface impoundments. In such “reclosure” cases, EPA 

should consider alternatives to Subtitle C closure standards under a flexible, site-specific 

program that would be protective of human health and the environment. Alternative cleanup 

methods sufficiently protective of human health and the environment would need to be 

considered in these cases, or if it could be demonstrated that there was no impact to human 

health and the environment beyond the boundaries of the plant, the facility would need to be 

allowed to remain closed with no further action. The regulations should allow utilities to 

demonstrate whether existing or closed surface impoundments and/or landfills are protective of 

human health and the environment. Groundwater monitoring efforts could largely provide this 

information. Additional methods could include: water-supply well surveys to demonstrate 

distance to the nearest receptor; definition of hydrogeology (e.g., hydraulic conductivity, 

presence of confining beds); natural attenuation capacity of the geologic media; groundwater 

modeling; and risk assessment. For additional information regarding Southern Company’s 
1055

position on closure requirements and alternative closure, see Part II.B.7, which is also relevant to 

the Subtitle C proposal

Response: The Agency acknowledges and appreciates this comment, however the Agency is 

not promulgating the subtitle D prime option that was presented in the proposed rule. The 

reader is referred to Units V and VI of the preamble for this rule for a complete discussion of 

the regulatory approach EPA is adopting as well as a comprehensive discussion of the technical 

requirements of the rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06410-66

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I believe establishing a fund for structural stability assessments of impoundments is appropriate. 

Structural stability of facilities is necessary to avoid costly cleanups and repairs. Emphasizing 

structural stability (which can include cap and cover maintenance, erosion control, and runon/run-off issues) also has the potential to reduce groundwater issues at facilities. In addition, 

subtitle D self-implementing regulations can use this assessment as oversight. Structural stability 

assessments appear to have multiple benefits and should be enforced as the key for this 

proposal’s outcome.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-06411-14

Organization1:Alabama Department of Environmental Management (ADEM)

Commenter1: Gerald Hardy

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.5

Comment Excerpt Text:

EPA also solicits comment on the proposal to establish and fund a program for conducting 

routine structural stability assessments of certain surface impoundments. While the Department 

currently has no such program of its own, we are concerned about the extent of EPA's expertise 

in this area. Further, ADEM strongly opposes EPA's use of its "appropriate enforcement 

authorities" as related to the findings of these structural assessments. Like the requirements of 

the rest of the proposal, we firmly believe it should be the States that have the primary 
1056

enforcement responsibility as it relates to these requirements. Should such a program be 

established and funded, EPA should provide this funding to the States through existing grant 

agreements and it should be then incumbent upon the States to implement the assessment 

programs and to take any appropriate enforcement necessary to compel subject facilities to 

respond to issues found concerning their impoundments.

Response: The Agency acknowledges and appreciates the comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-27

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.1.2.4

Comment Excerpt Text:

9. Pg. 35210, Alternative RCRA Subtitle D Approaches: This approach redacts the proposed 

phase-out of surface impoundments but would allow the EPA to establish a fund and program to 

conduct annual structural stability inspections of surface impoundments with “high” or 

“significant” hazard potential ratings.

Surface impoundments with “high” or “significant” hazard potential ratings are already subject 

to inspection by Arizona’s dam safety program. The assessment work to be performed by EPA 

would be duplicative of Arizona’s current inspection work. EPA should inspect those surface 

impoundments that are not regulated by Arizona’s dam safety program.

The preamble states that the EPA would require facilities to respond to issues identified with 

their surface impoundments through RCRA, CERCLA, and/or CWA authorities.

a) If this action occurs in an authorized state, would the enforcement responsibility rest wholly 

with the EPA or would it fall upon the state to respond? 

b) As the purpose of the proposed rules is to create authorities not currently found in existing 

programs, how does the EPA intend to compel remedial actions through those programs via this 

option?

Response: The Agency acknowledges and appreciates the comment. 

Section 4.7 - Subtitle D Regulatory Language Changes/Suggestions

Total Number of Submissions: 54

Total Number of Comments: 121

Comment Number: EPA-HQ-RCRA-2009-0640-01418-1

Organization1:Zephyr Environmental Corporation
1057

Commenter1: Paul C. Moore

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 4.4.7.2 4.4.7.4 7.4.1

Comment Excerpt Text:

I noted that subsections 257.62 through 257.64 of Alternative 1: Co-Proposal Under Authority of 

Subtitle D - PART 257 restrict the characterization, study, appraisal, investigation, analysis, 

geoscientific review and evaluation of fault areas, seismic impact zones and unstable areas 

(geologic related hazards) to registered professional engineers. This restriction is in opposition to 

many state statues that define such work as the public practice of geology or geosciences. My 

home state, Texas, has such a statute. The Texas Geoscience Practice Act also allows the making 

of recommendations regarding the geoscientific components of the engineered structure, work, 

or process by a licensed geoscientist. A Texas licensed professional engineer who normally 

performs service or work that is both engineering and geoscience is not required to be a licensed 

geoscientist under this Act. 

Title 30 of the Texas Administrative Code, Chapter 330 requires that studies of differential 

subsidence or faulting be conducted by either a licensed professional geoscientist qualified to 

evaluate conditions of differential subsidence or faulting or a licensed professional engineer 

experienced in geotechnical engineering. 

I therefore strongly recommend that "or a licensed professional geologist/geoscientist" be added 

after "professional engineer" in proposed 257.62 through 257.64 to bring the proposed regulation 

concurrence with state statutes and regulations. 

Response: The commenter is referred to the discussion found in Unit V.C of the preamble that 

provides the rationale behind the Agency’s decision to modify the qualifications of those 

individuals that must certify technical demonstration made by the owner or operator of the 

CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as 

defined in the rule, may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-33

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.6

Comment Excerpt Text:

Location Restrictions (P. 35241)

Rule as proposed

Sec. 257.60 Placement above the natural water table.
1058

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must 

be constructed with a base that is located a minimum of two feet above the upper limit of 

the natural water table.

(b) For purposes of this section, natural water table means the natural level at which water 

stands in a shallow well open along its length and penetrating the surficial deposits just 

deeply enough to encounter standing water at the bottom. This level is uninfluenced by 

groundwater pumping or other engineered activities.

For the geological conditions encountered in Kansas, and the location restrictions currently in 

Kansas solid waste regulations for siting all solid waste landfills, including Subtitle D municipal 

solid waste landfills, this proposed language is confusing and contradictory. Kansas requests this 

section to be modified to read as follows:

Sec. 257.60 Placement above the uppermost aquifer.

New CCR landfills and new CCR surface impoundments and lateral expansions must be 

constructed with a base that is located a minimum of five feet above the upper limit of the 

uppermost aquifer as defined in proposed regulation 257.40 and certified by a qualified 

groundwater scientist, professional geologist, or professional engineer.

Response: The commenter is referred to the discussion found in Unit V.C of the preamble that 

provides the rationale behind the Agency’s decision to modify the qualifications of those 

individuals that must certify technical demonstration made by the owner or operator of the 

CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as 

defined in the rule, may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-34

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.2

Comment Excerpt Text:

Section 257.70

Rule as proposed

Sec. 257.70 Design criteria for new CCR landfills and lateral expansions.

(a) New CCR landfills and lateral expansions of CCR landfills shall be constructed:

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system that is designed and constructed to maintain less than a 30-cm depth of 

leachate over the liner. The design of the composite liner and leachate collection system 

must be prepared by, or under the direction of, and certified by an independent registered, 

professional engineer.

(2) For purposes of this section, composite liner means a system consisting of two 
1059

components; the upper component must consist of a minimum 30-mil flexible membrane 

liner (FML), and the lower component must consist of at least a two-foot layer of 

compacted soil with a hydraulic conductivity of no more than lxl0-7 cm/sec. FML 

components consisting of high density polyethylene (HOPE) shall be at least 60-mil thick. 

The FML component must be installed in direct and uniform contact with the compacted 

soil component.

(3) For purpose of this section, hydraulic conductivity means the rate at which water can 

move through a permeable medium. (i.e., the coefficient of permeability).

(b) [Reserved]

For the geological and climatic conditions encountered in Kansas this proposed language is 

limiting and would not allow designs which can be equally protective while having the 

advantage of being sustainable indefinitely into the future. Capillary barrier designs using in-situ 

materials and geosynthetic clay liners have been used successfully in Kansas landfills located in 

areas of low precipitation. Other liner designs consisting of compacted clay have been 

adequately protective as demonstrated by years of groundwater monitoring in areas of eastern 

Kansas with higher precipitation and more shallow groundwater. A composite Subtitle D liner is 

clearly not needed to protect groundwater or surface water in all geologic and climatic scenarios. 

States should have the flexibility to review and approve of alternative liner designs that will 

provide adequate protection. Therefore, Kansas requests that paragraph (a)(I) of this section be 

modified to allow alternate designs as follows:

1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection 

system that is designed and constructed to maintain less than a 30-cm depth of leachate over the 

liner or an alternate design approved by the Director of an approved state that demonstrates that 

leachate will be contained or managed in a manner that is protective of ground water and 

surface water. The design of the composite liner and leachate collection system must be prepared 

by, or under the direction of, and certified by an independent registered, professional engineer. 

(modification in italics)

Response: While this comment specifically addresses alternative liner design, it includes a 

reference to an independent registered professional engineer. With regard to this issue, the 

commenter is referred to the discussion found in Unit V.C of the preamble that provides the 

rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-35

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:
1060

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1

Comment Excerpt Text:

Section 257.71

Rule as proposed

Sec. 257.71 Design criteria for existing CCR surface impoundments.

(a) No later than [five years after effective date of final rule] existing CCR surface 

impoundments shall be constructed:

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system between the upper and lower components of the composite liner. The 

design shall be in accordance with a design prepared by, or under the direction of, and 

certified by an independent registered professional engineer.

(2) For purposes of this section, composite liner means a system consisting of two 

components; the upper component must consist of a minimum 30-mil flexible membrane 

line (FML), and the lower component must consist of at least two-foot layer of compacted 

soil with a hydraulic conductivity of no more than lx10-7 cm/sec. FML components 

consisting of high density polyethylene (HOPE) shall be at least 60-mil thick. The FML 

component must be installed in direct and uniform contact with the compacted soil 

component.

(3) For purposes of this section, hydraulic conductivity means the rate at which water can 

move through a permeable medium (i.e., the coefficient of permeability).

In Kansas, when permitted designs call for composite liners, Kansas assures good composite 

action by requiring intimate and uniform contact between the FML component and the 

compacted soil component. Kansas supports the last sentence of subsection (a)(2) as written 

above. Kansas believes that the introduction of the leachate collection system between the two 

components of the composite liner would defeat the composite action. Kansas requests paragraph 

(a)(l) of this section be modified to read as follows.

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system above the upper component of the composite liner. The design shall be in 

accordance with a design prepared by, or under the direction of, and certified by an independent 

registered professional engineer.

Response: While this comment specifically addresses alternative liner design, it includes a 

reference to an independent registered professional engineer. With regard to this issue, the 

commenter is referred to the discussion found in Unit V.C of the preamble that provides the 

rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 
1061

Comment Number: EPA-HQ-RCRA-2009-0640-03444-36

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1

Comment Excerpt Text:

Section 257.72

Rule as proposed

Sec. 257.72 Design criteria for new CCR surface impoundments and lateral expansions.

(a) New CCR surface impoundments and lateral expansions of CCR landfills or surface 

impoundments shall be constructed:

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system between the upper and lower components of the composite liner. The 

design of the composite liner and leachate collection system must be prepared by, or under 

the direction of, and certified by an independent registered, professional engineer.

(2) For purposes of this section, composite liner means a system consisting of two 

components; the upper component must consist of a minimum 30-mil flexible membrane 

liner (FML), and the lower component must consist of at least a two-foot layer of 

compacted soil with a hydraulic conductivity of no more than lx10-7 cm/sec. FML 

components consisting of high density polyethylene (HDPE) shall be at least 60-mil thick. 

The FML component must be installed in direct and uniform contact with the compacted 

soil component.

In Kansas, when permitted designs call for composite liners, Kansas assures good composite 

action by requiring intimate and uniform contact between the FML component and the 

compacted soil component. Kansas supports the last sentence of subsection (a)(2) as written 

above. Kansas believes that the introduction of the leachate collection system between the two 

components of the composite liner would defeat the composite action. Kansas requests paragraph 

(a)(l) of this section be modified to read as follows.

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate 

collection system above the upper component of the composite liner. The design shall be in 

accordance with a design prepared by, or under the direction of, and certified by an independent 

registered professional engineer.

Response: While this comment specifically addresses a different technical standard, it includes 

a reference to an independent registered professional engineer. With regard to this issue, the 

commenter is referred to the discussion found in Unit V.C of the preamble that provides the 

rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 
1062

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-03444-38

Organization1:Kansas Department of Health and Environment

Commenter1: William L. Bider

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.8.4 4.4.8.5

Comment Excerpt Text:

Proposed Rule

(d) For closure with CCRs in place, a final cover system must be installed at all CCR 

landfills and surface impoundments that is designed to minimize infiltration and erosion. 

The final cover system must be designed and constructed to:

(1) Have a permeability less than or equal to the permeability of any bottom liner system or 

natural subsoils present, or a permeability no greater than lx10-5 cm/sec, whichever is less, 

and

(2) Minimize infiltration through the closed CCR landfill or surface impoundment by the 

use of an infiltration layer that contains a minimum IS-inches of earthen material, and

(3) Minimize erosion of the final cover by the use of an erosion layer that contains a 

minimum 6-inches of earthen material that is capable of sustaining native plant growth, 

and

(4) Minimize the disruption of the final cover through a design that accommodates settling 

and subsidence.

(e) The owner or operator of the CCR landfill or surface impoundment may select an 

alternative final cover design, provided the alternative cover design is certified by an 

independent registered professional engineer and notification is provided to the state and 

the EPA Regional Administrator that the alternative cover design has been placed in the 

operating record and on the owner's or operator's publicly accessible internet site. The 

alternative final cover design must include:

(1) An infiltration layer that achieves an equivalent reduction in infiltration as the 

infiltration layer specified in paragraphs (d)(I) and (d)(2) of this section, and

(2) An erosion layer that provides equivalent protection from wind and water erosion as 

the erosion layer specified in paragraph (d)(3) of this section.

For the geological conditions encountered in Kansas this proposed language could result in final 

covers needing to be composite caps incorporating a geomembrane. In several solid waste 

landfills in Kansas, post-closure maintenance of such cover systems has been challenging. Such 

cover systems are not sustainable indefinitely into the future. On the other hand, appropriately 

designed alternative final covers such as capillary barrier covers and evapotranspiration covers 

are being successfully used in Kansas and such covers are designed to be protective indefinitely 

into the future with minimal maintenance. EPA technical experts and trainers have been 
1063

supportive of such covers being used for Subtitle D landfill and similar technical basis would 

apply to CCR landfills. Kansas requests that paragraphs (e)( 1) and (e )(2) of section (e) be 

deleted and section (e) be modified to read as follows:

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative 

final cover design, provided the alternative cover design is certified by an independent registered 

professional engineer and notification is provided to the state and the EPA Regional 

Administrator that the alternative cover design has been placed in the operating record and on 

the owner's or operator's publicly accessible internet site. 

Response: While this comment specifically addresses a different technical standard, it includes 

a reference to an independent registered professional engineer. With regard to this issue, the 

commenter is referred to the discussion found in Unit V.C of the preamble that provides the 

rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-05751-1

Organization1:Savannah River Nuclear Solutions, LLC (SRNS)

Commenter1: Hal W. Morris

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.2

Comment Excerpt Text:

Comment Number l is on a statement in the Supplementary Information, section A, on page 

35129 of the June 21, 2010 Federal Register that says "CCRs from non-utility boilers burning 

coal are not included within today's proposed rule ." The language for the proposed subtitle C 

section 261 .50 (b)(4) says "[This listing does not apply to coal combustion residuals that are:] 

Generated by facilities outside the electric power sector (i .e ., not included in NAICS code 

22112) ." Similar language is not in the wording of the proposed subpart D section 257.40 (a) 

Applicability, or in any other sections of the proposed subpart D. If the subtitle D option 

proposed in the June 21, 2010 Federal Register is enacted with the language in the proposed rule, 

CCRs from non-utility boilers burning coal will be included, contrary to the stated position of the 

Environmental Protection Agency (EPA) in the preamble . Mr. Alexander Livnat, EPA Office of 

Resource Conservation and Recovery, was contacted by phone on June 22, 2010 to discuss this 

point. Mr. Livnat confirmed that the EPA did intend to exclude CCRs from non-utility boilers 

burning coal from regulation at this time from both the subtitle C and the subtitle D proposed 

rules. SRNS respectfully requests that the EPA revise the language of the proposed section 

257.40 to reflect the wording in the proposed section 261 .50 (b)(4) in order to clearly exclude 

CCRs from non-utility boilers burning coal from regulation.
1064

Response: The Agency acknowledges and appreciates this comment, the commenter is 

referred to the discussion in Unit VI. Applicability.

Comment Number: EPA-HQ-RCRA-2009-0640-06275-15

Organization1:Lansing Board of Water and Light (BWL) and Michigan State University 

(MSU)

Commenter1: Jeffrey L. Woolstrum

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA expressly exempted from regulation under the Subtitle C option CCRs generated by 

facilities outside the electric power sector (i.e., not included in NAICS code 22112), such as the 

T.B. Simon Power Plant. EPA, however, apparently overlooked providing a similar express 

exemption in the Subtitle D option.

MSU will be submitting separate comments to EPA to correct this oversight.

Response: The Agency acknowledges and appreciates this comment, the commenter is 

referred to the discussion in Unit VI. Applicability.

Comment Number: EPA-HQ-RCRA-2009-0640-06280-18

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 7.4.1

Comment Excerpt Text:

If EPA proceeds with a regulation under Subtitle D, the Department strongly recommends that it 

include a process whereby EPA acknowledges those states with existing solid waste regulatory 

programs that are equivalent to the minimum national criteria in the regulation, and authorizes 

those states to implement and enforce the federal regulation. Provisions should also be added that 

clearly state that the federal regulation is not a substitute for existing state regulation of CCR, 

and that states may be more stringent than the federal requirements. This clarification could be 

placed in Section 257.50 of the proposed regulation, thereby strengthening the language 

concerning the applicability of other regulations.
1065

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06280-19

Organization1:South Carolina Department of Health and Environmental Control

Commenter1:Daphne Neel

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.6.2

Comment Excerpt Text:

The proposal for Subtitle C contains beneficial use language in 261.4(b)(4)(i). Why is similar 

language not included in the Subtitle D proposal? Inclusion of this language in the Subtitle D 

proposed rule will more effectively promote the beneficial use of CCRs.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09282-13

Organization1:North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1

Comment Excerpt Text:

Note errors in the following proposed regulations: §257.71 Design Criteria for Existing CCR 

Surface Impoundments(a)(1) and §257.72 Design Criteria for New CCR Surface Impoundments 

and Lateral Expansions (a)(1) should read:

“With a composite liner as defined in paragraph (a)(2) of this section and a leachate collection 

system betweenabove the upper and lower componentscomponent of the composite liner. The 

design of the composite liner and leachate collection system must be prepared by, or under the 

direction of, and certified by an independent registered, professional engineer.” 

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 
1066

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-20

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4.6

Comment Excerpt Text:

Section 257.60 Proposed Rule

Sec. 257.60 Placement above the natural water table.

(a) New CCR landfills and new CCR surface impoundments and lateral expansions must be 

constructed with a base that is located a minimum of two feet above the upper limit of the natural 

water table.

(b) For purposes of this section, natural water table means the natural level at which water stands 

in a shallow well open along its length and penetrating the surficial deposits just deeply enough 

to encounter standing water at the bottom. This level is uninfluenced by groundwater pumping or 

other engineered activities.

This proposed language is confusing. We believe that the maximum seasonal high water table is 

a threshold that can be measured through indicators such as soil morphology or field 

measurements and the use of the maximum seasonal high water table is an appropriate measure 

of the upper limit of the natural water table. We request this section to be modified to read as 

follows:

Sec. 257.40- include a new term and definition- "Maximum seasonal water table" means the 

highest level of a saturated zone (the apparent or perched water table) over a continuous period 

of more than two weeks in most years, but not a permanent water table.

Sec. 257.60 Placement above the uppermost aquifer.

New CCR landfills and new CCR surface impoundments and lateral expansions must be 

constructed with a base that is located a minimum of two feet above the maximum seasonal 

water table as defined in proposed regulation 257.40 and certified by a qualified groundwater 

scientist, professional geologist, or professional engineer.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 
1067

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-21

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1

Comment Excerpt Text:

Section 257.70 Proposed Rule

Sec. 257.70 Design criteria for new CCR landfills and lateral expansions.

(a) New CCR landfills and lateral expansions of CCR landfills shall be constructed:

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection 

system that is designed and constructed to maintain less than a 30-cm depth of leachate over the 

liner. The design of the composite liner and leachate collection system must be prepared by, or 

under the direction of, and certified by an independent registered, professional engineer.

(2) For purposes of this section, composite liner means a system consisting of two components; 

the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the 

lower component must consist of at least a two- foot layer of compacted soil with a hydraulic 

conductivity of no more than 1x10-7 cm/sec. FML components consisting of high density 

polyethylene (HDPE) shall be at least 60-mil thick. The FML component must be installed in 

direct and uniform contact with the compacted soil component.

(3) For purpose of this section, hydraulic conductivity means the rate at which water can move 

through a permeable medium. (i.e., the coefficient of permeability).

(b) [Reserved]

This proposed language is restrictive and would not allow designs which can be equally 

protective of groundwater and surface water. Other alternate liners have been used successfully 

throughout the country and provisions to allow alternate liners need to be incorporated. A 

composite Subtitle D liner is clearly not needed to protect groundwater or surface water in all 

geologic and climatic scenarios. States should have the flexibility to review and approve 

alternative liner designs that will provide adequate protection as allowed under part 258 for 

sanitary landfills. Therefore, we request that paragraph (a)(1) of this section be modified to allow 

alternate designs as follows:

1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate collection 

system that is designed and constructed to maintain less than a 30-cm depth of leachate over the 

liner or an alternate design approved by the Director of an approved State that demonstrates that 

leachate will be contained or managed in a manner that is protective of groundwater and surface 

water. The design of the composite liner and leachate collection system must be prepared by, or 

under the direction of, and certified by an independent registered, professional engineer. 
1068

(Proposed change underlined)

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-23

Organization1:Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1

Comment Excerpt Text:

Section 257.72 Proposed Rule

Sec. 257.72 Design criteria for new CCR surface impoundments and lateral expansions.

(a) New CCR surface impoundments and lateral expansions of CCR landfills or surface 

impoundments shall be constructed:

(1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate 

collection system between the upper and lower components of the composite liner. The design of 

the composite liner and leachate collection system must be prepared by, or under the direction of, 

and certified by an independent registered, professional engineer.

(2) For purposes of this section, composite liner means a system consisting of two components; 

the upper component must consist of a minimum 30-mil flexible membrane liner (FML), and the 

lower component must consist of at least a two- foot layer of compacted soil with a hydraulic 

conductivity of no more than 1x10-7 cm/sec. FML components consisting of high density 

polyethylene (HDPE) shall be at least 60-mil thick. The FML component must be installed in 

direct and uniform contact with the compacted soil component.

When permitted designs call for composite liners, we assure good composite action by requiring 

intimate and uniform contact between the FML component and the compacted soil component. 

We believe that the introduction of the leachate collection system between the two components 

of the composite liner would defeat the composite action. Virginia DEQ requests paragraph (a) 

(1) of this section be modified to read as follows (changes suggested are underlined):.

(1) With a composite liner, as defined in paragraph (a) (2) of this section and a leachate 

collection system above the upper component of the composite liner. The design shall be in 

accordance with a design prepared by, or under the direction of, a registered engineer and shall 

be certified by an independent registered professional engineer.
1069

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-35

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 7.1.1.1 4.2.2

Comment Excerpt Text:

Pg. 35243, Section 257.70 Design criteria for new CCR landfills and lateral expansions: States 

must have the flexibility to review and approve of alternative liner designs that will provide 

adequate protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best 

Available Demonstrated Control Technology criteria and process in developing the design for a 

facility which allows for the use of site-specific design elements. Arizona requests that paragraph 

(a)(1) of this section be modified to allow alternate designs approved under state programs as 

follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section and a leachate collection 

system that is designed and constructed to maintain less than a 30-cm depth of leachate over the 

liner or an alternate design approved by the Director of an approved state that demonstrates that 

leachate will be contained or managed in a manner that is protective of groundwater and 

surface water. The design of the composite liner and leachate collection system or alternate 

design must be prepared by, or under the direction of, and certified by an independent, 

registered, professional engineer.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-36

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles
1070

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 7.1.2.1 4.2.2

Comment Excerpt Text:

Pg. 35243, Section 257.71 Design criteria for existing CCR surface impoundments: States must 

have the flexibility to review and approve of alternative liner designs that will provide adequate 

protection. Arizona’s Aquifer Protection Permit Program requires the use of a Best Available 

Demonstrated Control Technology criteria and process in developing the design for a facility 

which allows for the use of site-specific design elements. Arizona requests that paragraph (a)(1) 

of this section be modified as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a leachate collection 

system above the upper components of the composite liner or an alternate design, approved by 

the Director of an approved state, that prevents migration of wastes out of the impoundment to 

subsurface soils, groundwater, or surface water. The design shall be in accordance with a design 

prepared by, or under the direction of, and certified by and independent registered professional 

engineer.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-37

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1

Comment Excerpt Text:

Pg. 35244, Section 257.71 Design criteria for existing CCR surface impoundments: If an existing 

surface impoundment has been demonstrated to meet Arizona’s Best Available Demonstrated 

Control Technology in its design and ongoing monitoring is in place, then it is not necessary to 

dredge and re-line or close the impoundment. Arizona requests that paragraph (g) of this section 

be deleted.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 
1071

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-38

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1.1 7.1.2.1

Comment Excerpt Text:

Pg. 35244, Section 257.72 Design criteria for new CCR surface impoundments and lateral 

expansions: Arizona’s Aquifer Protection Permit Program requires the use of a Best Available 

Demonstrated Control Technology criteria and process in developing the design for a facility 

which allows for the use of site-specific design elements. Arizona requests that paragraph (a)(1) 

of this section be modified as follows (modification in italics):

(1) With a composite liner, as defined in paragraph (a)(2) of this section as a leachate collection 

system above the upper comonents of the composite liner or an alternate design, approved by 

the Director of an approved state, that prevents migration of wastes out of the impoundment to 

subsurface soils, groundwater, or surface water. The design of the composite liner and leachate 

collection system or alternate design must be prepared by, or under the direction of, and certified 

by and independent registered professional engineer.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-41

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.8.4 4.2.2 7.1

Comment Excerpt Text:

Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final cover designs 
1072

be approved by the Director of an approved state. Arizona’s Aquifer Protection Permit Program 

allows for the final cover design to be developed using the a Best Available Demonstrated 

Control Technology criteria and process and the design must be approved in the facility’s permit. 

Arizona requests that paragraphs (e)(1) and (e)(2) of section (e) be deleted and section (e) be 

modified as follows (modification in italics):

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative 

final cover design, provided the alternative cover design is approved by the Director of an 

approved state and certified by an independent registered professional engineer.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-43

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.8.9 4.2.2

Comment Excerpt Text:

Pg. 35253, Section 257.101 Post-closure care requirements: The Director of an approved state 

must have the ability to review and approve any request for reduction in the 30-year post-closure 

care period. Arizona requests that paragraph (b)(1) be modified as follows (modification in 

italics):

(1) Decreased if the owner or operator of the CCR landfill or surface impoundment demonstrates 

that the reduced period is sufficient to protect human health and the environment and this 

demonstration is certified by an independent registered professional engineer and approved by 

the Director of an approved state. Upon approval, the demonstration shall be placed in the 

operating record and on the owner’s or operator’s publicly accessible Internet site.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 
1073

Comment Number: EPA-HQ-RCRA-2009-0640-09337-47

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3

Comment Excerpt Text:

3. Pg. 35241, Independent Registered Professional Engineer or Hydrologist: Suggest including 

Registered Geologist. Also suggest adding that the professional must be certified or registered in 

the state where the facility exists, in the field where he/she is claiming expertise, provided the 

state has a registration program for that particular field.

Response: The commenter is referred to the discussion found in Unit V.C of the preamble 

providing the rationale behind the Agency’s decision to modify the qualifications of those 

individuals that must certify technical demonstration made by the owner or operator of the 

CCR unit. The Agency in this rule is requiring that only a qualified professional engineer, as 

defined in the rule, may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09337-50

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.4

Comment Excerpt Text:

6. Pg. 35242, Section 257.62: Suggest changing language so that it is clear that the 

demonstration must be to the satisfaction of the State. This is applicable throughout the 

document.

Response: The Agency acknowledges and appreciates the comment, the commenter is 

referred to Units V and IX of the preamble for discussions as to how this subtitle D rule will be 

implemented and enforced. The reader is also referred to Unit IV of the preamble for a 

discussion relating to the decision to regulate CCR under subtitle D of RCRA. In addition, Unit II 

of the preamble discusses EPA’s statutory authorities under a subtitle D rule. In response to this 

specific requirement suggested by the commenter, the Agency has no authority to require such 

a statement be included in the regulatory language.
1074

Comment Number: EPA-HQ-RCRA-2009-0640-09337-54

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.5.1

Comment Excerpt Text:

10. Pg. 35244, Section 257.71: Add Instrumentation and Monitoring Plan. Add Data Report of 

all monitoring along with interpretation by a qualified engineer.

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09423-5

Organization1:American Forest and Paper Association (AF&PA)

Commenter1: Paul Noe

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 2.3.2 3.9 4.4.3

Comment Excerpt Text:

EPA Must Exclude CCRs from Pulp and Paper Mill Coal Combustion under the Definition of 

CCR

Within both the Subtitle C proposal (at Section 264.1301) and Subtitle D proposal (at Section 

257.40(b)), EPA must revise its definitions of “Coal Combustion Residuals (CCRs)” to exclude 

non-electric utility residuals. The current definitions do not distinguish between electric utility 

and non-electric utility coal combustion residuals. However, the entire preamble of the rule for 

both the Subtitle C and Subtitle D proposals states that the proposals – regardless of which is 

chosen -- are directed towards electric utility residuals only. Therefore, the definitions must be 

revised to address only those residuals meant to be regulated by this rulemaking.
1075

Response: The commenter is referred to the Applicability section Unit VI of the proposed rule. 

This section describes those facilities that are subject to this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-09713-13

Organization1:Indianapolis Power & Light Company (IPL)

Commenter1: Dana G. Meier

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.9

Comment Excerpt Text:

EPA's stated intent to exclude placement of CCRs in coal mines from the final rule is 

contradicted by EPA's definitions of "Minefill" and "CCR Landfill". The first page of the 

preamble to the proposed rule explicitly states: "EPA is also not proposing to address the 

placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action." But, 

then EPA defines the term "minefill" as a "project involving the placement of CCRs in coal mine 

voids for use as fill, grouting, subsidence control, capping, mine sealing, and treating acid mine 

drainage, whether for purposes of disposal or for beneficial use." 

There are several concerns with this defintion. First, it does not specify whether it applies to both 

surface and underground mines. Arguably, EPA's use of the phrase "in coal mine voids" might 

imply that the term is not applicable to surface mine land reclamation and is limited to 

underground mines. Second, by delineating only certain uses, the definition contradicts the 

broader exclusion EPA characterizes in the preamble as including both minefill and non-mine fill 

uses with no differentiation between the type of mining operation. Finally, the phrase "whether 

for purposes of disposal or for beneficial use" creates additional confusion by suggesting that

some of the uses listed are considered disposal while others are considered beneficial use. 

As written, EPA's definition appears to contradict its stated intention that the rulemaking does 

not "address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in 

this action." 75 Fed. Reg. at 35,123 (emphasis added). IPL recommends that EPA eliminate the 

confusion by eliminating the definition of "minefill," the references to "minefilling," "minefilling 

operation," and "underground mine" from the final rule. Instead, IPL believes EPA should use 

the term mine placement as referred to by OSM or mine reclamation and revise the regulatory 

text to make it clear that all uses of CCRs at surface and underground mining and reclamation 

operations are not covered by the final rule. 

The ambiguity and contradiction with EPA's stated intention that OSM develop regulations for 

coal mines also extend to EPA's defintions of "CCR landfill" and "Beneficial use of Coal 

Combustion Products (CCF's)." Both definitions reference "large scale fill" operations or 

projects, creating considerable confusion and uncertainty over the application of the proposed 

rule to surface coal mining and reclamation operations. In particular, IPL is concerned that these 

definitions might be construed to mean that placement of CCRs in SMCRA-authorized 

reclamation permits would be improperly subject to regulation under RCRA as "CCR landfill", 
1076

contrary EPA's stated intention to allow OSM to take the lead on regulating uses of CCRs at coal 

mines in accordance with the NRC's recommendations. 

IPL has multiple reasons for questioning EPA's definition. First, EPA defines the term "CCR 

landfill" by only expressly excluding "underground mine[s]." At the same time, EPA's regulatory 

definition of "CCR landfill" includes "large scale fill operations" as a disposal facility covered by 

the rule. Second, EPA defines "Beneficial use of Coal Combustion Products (CCPs)" as 

expressly excluding the use of CCRs in "large scale fill projects, such as for restructuring the 

landscape." Importantly, EPA's use of the terms "large scale fill operations" and "large scale fill 

projects" are not specifically defined in the preamble or the proposed regulations. Without 

something more concrete, IPL cannot determine with confidence the extent to which this term 

could be interpreted to apply to surface coal mining operations. 

It is imperative that EPA clarify that the term "CCR landfill" in fact does not include the use of 

CCRs at surface coal mining and reclamation operations. It is also essential that EPA exclude 

surface coal mining and reclamation operations from the term "large scale fill operation." This 

clarification can be accomplished by adopting the revisions suggested above in removing 

references to "minefill," "minefilling operation," and "underground mine," which may suggest 

that surface coal mining and reclamation operations are not excluded from regulation as disposal 

facilities, and replace that language with an explicit statement that all surface and underground 

coal mining and reclamation operations are exempt from EPA's regulation. 

In fact, given that the beneficial uses of CCRs in the proposals exclude the use of CCRs that are 

used in large-scale fill projects, including those for restructuring the landscape, any use of CCRs 

for surface or open pit mines may be considered an improper use subjecting the site to regulation 

as a CCR landfill . Id. at 35254 (proposed 40 C.F.R. 261.4(b)(4)(i)). Such a result would be 

inconsistent with EPA's statement that CCR mine placement operations will be the subject matter 

of a later rulemaking by OSM. Therefore, IPL strongly encourages EPA to provide regulatory 

certainty to CCRs used in mine placement by explicitly exempting CCRs used at coal mine sites 

from 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. Id. at 35165. 

Comment Number: EPA-HQ-RCRA-2009-0640-09885-28

Organization1:Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

There is an error in the proposed leachate collection system requirements for CCR surface 

impoundments
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Progress Energy believes that EPA has inadvertently included an error in the regulatory text 

requiring the installation of a leachate collection system between the upper and lower 

components of the composite liner system for existing CCR surface impoundments and for new 

impoundments. Specifically, EPA proposes in the case of existing CCR impoundments that, no 

later than five years after the effective date of the Subtitle D regulations, CCR impoundments 

shall be constructed with a composite liner with “a leachate collection system between the upper 

and lower components of the composite liner.” EPA proposes a similar condition for new 

impoundments (and lateral extensions to existing impoundments), directing that the leachate 

collection system shall be installed “between the upper and lower components of the composite 

liner.” The Company believes that this is an error, given that the composite liner systems that 

CCR surface impoundments are required to employ are required to have the upper flexible 

membrane liner (FML) component to be “installed in direct and uniform contact with the 

compacted soil component.” In other words, given that both components of the liner system must 

be in direct contact with one another, there is no way that a leachate collection system can be 

installed between these two components.

Even in the case of new CCR landfills, the proposed regulatory text makes clear that the leachate 

collection system is to be installed over the liner. Therefore, EPA should eliminate the proposed 

requirement directing that leachate collection systems in the case of surface impoundments be 

between the upper and lower components of the liner system when these components must be “in 

direct and uniform contact” with one another

Comment Number: EPA-HQ-RCRA-2009-0640-09951-27

Organization1:Full Circle Solutions, Incorporated

Commenter1: Robert J. Waldrop

Commenter Type: Beneficial User

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.3

Independent registered professional engineer or hydrologist - As stated in our comments 

concerning RCRA Subtitle D Regulations, we do not believe a registered professional engineer 

or hydrologist needs to be someone not employed by the owner or operator. This definition 

should be changed as follows:

Independent registered professional engineer or hydrologist means a scientist or engineer who 

has received a baccalaureate or postgraduate degree in the natural sciences or engineering and 

has sufficient training and experience in groundwater hydrology and related fields as may be 

demonstrated by state registration, professional certifications, or completion of accredited 

university programs that enable that individual to make sound professional judgments regarding 

the technical information for which a certification under this subpart is necessary.
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Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Comment Number: EPA-HQ-RCRA-2009-0640-09996-7

Comment Number: EPA-HQ-RCRA-2009-0640-10017-14

Organization1:Salt River Project (SRP)

Commenter1:Daniel J. Casiraro

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.2 4.4.7.5.2

Comment Excerpt Text:

Under a Subtitle D program, state agencies should be allowed to establish groundwater 

monitoring parameters based on site-specific conditions due to the high variability of 

groundwater and geology across the United States. Many states, including Arizona, already have 

a robust groundwater protection program in-place (e.g., ADEQ's Aquifer Protection Permit 

Program) to fully protect regional groundwater that may become future drinking water sources. 

An environmental professional or a professional engineer, hydrologist, or registered geologist 

should be allowed to establish an alternate list of parameters as deemed appropriate based on 

site-specific characteristics. SRP recommends that EPA add language in the Subtitle D 

groundwater monitoring rules allowing the flexibility for establishing site specific parameters 

based on review by a state registered professional. 

Response: While this comment addresses a different technical requirement of the proposed 

rule, the commenter is referred to the discussion found in Unit V.C of the preamble providing

the rationale behind the Agency’s decision to modify the qualifications of those individuals that 

must certify technical demonstration made by the owner or operator of the CCR unit. The 

Agency in this rule is requiring that only a qualified professional engineer, as defined in the rule, 

may make these certifications. 

Section 4.8 - Other

Total Number of Submissions: 10

Total Number of Comments: 19
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Comment Number: EPA-HQ-RCRA-2009-0640-06298-25

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

The department believes that CCR should be regulated consistently in the United States as a 

solid waste. It should be regulated and managed to increase the rate of its reuse/recycling, 

reducing the use of our natural resources and lowering the rate of CCR disposal. The success in 

Europe of reusing/recycling CCR material, approximately 94 percent, is a worthy goal.

Response: The commenter is referred to Unit IV of the preamble for a discussion of EPA’s 

decision to regulate CCR under subtitle D of RCRA. The commenter is also referred to Units IV 

and VI for a complete discussion of the beneficial use aspects of the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-6

Organization1:Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

EPA has readily acknowledged that it can develop non-hazardous waste rules for CCR under 

RCRA’s Subtitle D framework that will be fully protective of human health and the 

environment. [Footnote 5: See the discussions on pages 7 and page 42, infra.]. In addition, the 

development of Subtitle D CCR regulations is the appropriate outgrowth of EPA’s two Reports 

to Congress and two final Regulatory Determinations under the Bevill Amendment declaring that 

CCR does not warrant hazardous waste regulation under RCRA Subtitle C.

Response: The Agency acknowledges and appreciates the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06400-14

Organization1:Waste Management (WM)

Commenter1: Susan Briggum

Commenter Type: Other Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.4 4.4.7.7.2 4.2.3.1 4.2.3.2 4.2.6 7.4.2 10.5.2.3
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Comment Excerpt Text:

Subtitle D standards tailored to the characteristics of CCRs: EPA’s proposed liner and 

monitoring standards make sense and, as EPA demonstrates, will provide sound and reliable 

long-term protection. The addition of a 4010 permit for CCR facilities provides the mechanism 

to respond to monitoring results and provide assurance of compliance.

EPA’s proposal, however, focuses largely on the absence of a permit and the concept that a 

licensed professional engineer’s judgment will take care of the details in terms of proper CCR 

handling. It makes much more sense for EPA to confer with the utility industry and their service 

providers, like ourselves, to identify specific fundamental performance criteria under a 4010 

permit program. Proper handling of CCRs requires waste analysis to determine the specific 

characteristics of the particular waste stream (e.g., its potential for generation of hydrogen sulfide 

gas), its pH, water content and impact on slope stability, potential for heat generation and 

potential to clog leachate and gas collection lines. There needs to be a plan to handle the material 

in a way that controls dust, and uses the appropriate amount of moisture to control dust. 

Containment standards are necessary for transportation of dry CCRs. 

It would be desirable for EPA to provide baseline criteria for waste acceptance and analysis to 

assure proper recognition of waste chemistry and physical characteristics. We realize that 

because the record for this rulemaking has not focused on describing good operating practices, 

EPA may need to re-propose a Subtitle D permit program specific to CCR only or to proposed 

modifications to the Subtitle D program tailored to the needs of CCR handling. In order not to 

delay progress, it would make sense for EPA to convene an advisory panel or work group of the 

regulated industry, Subtitle D service providers, state regulators (Illinois and Pennsylvania, for 

example, have developed standards regulating use and disposal of CCRs and would serve as 

resources for EPA)[Footnote 6: See, e.g., Pennsylvania Department of Environmental Protection, 

General Permit for Calcium Sulfate FGD material (physical testing an chemical analysis 

requirements, permeability requirements, distance to groundwater, mixture requirements, 

application and compaction requirements, monitoring, storage requirements, general operating 

standards, conditions for beneficial use, recordkeeping and reporting); Illinois Environmental 

Protection Agency, Title 35, Subtitle B, Subchapter *, Part 816 (quality control procedures for 

CCR mixtures).] and experts in affected community and environmental groups. This group could 

engage in the kind of discussion that would allow EPA to re-propose promptly a fully developed 

standard. 

Response: The Agency acknowledges and appreciates the comment. The commenter is 

referred to Units IV and V of the preamble discussion for the Agency’s rationale for 

promulgating this subtitle D rule for the disposal of CCR in landfills and surface impoundments.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-21

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)
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Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.3.3

Comment Excerpt Text:

Guidance is Needed. For a rule of this complexity and scope, it is essential that EPA provide 

guidance for implementation when the final rule is issued. Affected facilities and state agencies 

will necessarily rely on EPA’s guidance for the successful and consistent implementation of 

federal CCR regulations.

Response: The Agency acknowledges and appreciates this comment. The commenter is 

referred to the preamble supporting this rule for additional discussion as well as the EPA 

website supporting this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06416-40

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.11 3.5.2.2 3.4.1.1.1

Comment Excerpt Text:

The proposed rules engender a significant need for guidance, particularly if the RCRA Subtitle C 

alternative is chosen. Operators, EPA Regional staff, and State agency staff will not 

automatically be aware of the interpretations in the Preamble and could easily come up with 

differing decisions. We suggest that the rule not be finalized until guidance is ready to be issued 

at the same. The guidance needs to incorporate much of the discussion in the Preamble that 

interprets the rule. Examples follow of items that need explanation if rules do not specifically 

address them. 

Two comments of note on p. 35173: Manifesting is required for transport to off-site disposal, but 

not for disposal sites located on the same property as the combustor generating the CCR. No

explanation is provided on issues such as whether property owned by utilities on both sides of 

public roads are considered the same property for CCR transporter purposed, thus not requiring 

manifesting, or separate properties, thus requiring manifesting for the sole reason of hauling 

vehicles crossing a public road. This situation can easily arise if a utility expands powerplant 

facilities to fill up its original parcel and purchases additional property for landfilling purposes. 

For beneficial use, the preamble states that the Bevill Amendment exemption applies to CCR 

used beneficially, so that RCRA Subtitle C rules do not apply from point of generation 

throughout the reuse process. When a product using CCR reaches the end of useful life, the 

product becomes a waste. Whether or not the waste is subject to RCRA Sub C or D will not be 
1082

because of the CCR content but on whether the waste passes or fails the hazardous waste 

characteristics (TCLP, etc.). This appears to answer concerns about whether products or wastes 

resulting from products would automatically be subject to RCRA Sub C simply because CCR 

provided some of the ingredients. 

Comment on p. 35175: Only new CCR landfills would be required to meet the minimum 

technology requirements of liners and leachate collection systems. Existing landfills would be 

allowed to continue filling without having to be retrofitted with liners and leachate collection 

systems. Groundwater monitoring, corrective action and other requirements in accordance with 

the rule would be required at existing CCR landfills that continue to receive CCR wastes. It 

should be clearly stated what design requirements that lateral or vertical expansions of such 

landfills would have to meet, and what are the other requirements in the rule that an existing 

CCR landfill would have to meet. 

Response: The Agency acknowledges and appreciates the comment. Under this final rule the 

Agency is regulating the disposal of CCR in landfills and surface impoundment under subtitle D 

or RCRA. The reader is referred to the Federal Register notice containing this rule for a 

comprehensive discussion of the requirements and rationale for developing the rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06533-7

Organization1:Empire District Electric Company

Commenter1: George G. Thullesen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.11

Comment Excerpt Text:

Empire District currently sluices ash from our coal-fired units at the Riverton Generating Station 

to a permitted landfill. We are investigating the cost of converting these units to dry handling for 

CCR removal. A key consideration for this conversion is the final classification of the existing 

landfill. Will a permitted landfill at which CCR are currently placed by sluicing be considered a 

surface impoundment under the proposed regulations if the owner stops sluicing and begins 

dewatering the landfill prior to the effective date of the regulations?

Response: The commenters is referred to Volume 11 of the Response to Comment document 

for a discussion of this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06533-8

Organization1:Empire District Electric Company

Commenter1: George G. Thullesen

Commenter Type: Electric Utility Company

Classification: Substantive
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Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.11

Comment Excerpt Text:

EPA did not directly address situations at existing and abandoned landfills and surface 

impoundments where CCR may be in direct contact with the natural ground water table. Will 

removal of CCR be required in cases where the base of an existing or abandoned surface 

impoundment or landfill is shown to be below the natural water table? Will removal be required 

even if the monitoring plan data indicates that no contamination of the natural groundwater has 

or is occurring? Under the subtitle D or D prime alternative, we believe that the removal of 

existing waste, closure with the waste in place and/or continued operation of the existing facility 

should be governed by the facilities monitoring program.

Response: The commenter is referred to Volume 4 of the Response to Comment document 

regarding location criteria.

Comment Number: EPA-HQ-RCRA-2009-0640-06533-9

Organization1:Empire District Electric Company

Commenter1: George G. Thullesen

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.11

Comment Excerpt Text:

Empire District would appreciate EPA’s direct comments to the following questions. Will 

removal of CCR be required for closure of an existing surface impoundment regardless of 

whether or not the base of the impoundment is below the natural water table? If removal is not 

required, what specific criteria will be required for the closure of surface impoundments with the 

CCR in place?

Response: The commenter is referred to Volume 4 of the Response to Comment 

document supporting this rule for a discussion of this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-34

Organization1:Arizona Department of Environmental Quality (ADEQ)

Commenter1:Benjamin H. Grumbles

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 10.3.3 3.11

Comment Excerpt Text:

General question: does the proposed rule contemplate the excavation of materials previously 

disposed of in a surface impoundment or landfill for repurposing as CCP? If so, would the 
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materials still be regulated as waste? Or would the material cease to be regulated at the point of 

excavation?

Response: The reader is referred to Unit V of the preamble for the final rule as well as volume 

12 of the Response to Comment Document supporting this rulemaking effort.

 

Comment Number: EPA-HQ-RCRA-2009-0640-09765-14

Organization1:Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.11

Comment Excerpt Text:

The EPRI comments do not endorse any particular regulatory option put forth by US EPA in the 

June 21 proposal. The purpose of these comments is to provide technical information that can be 

used by US EPA and others to develop regulations based on the best data available.

Response: The Agency acknowledges and appreciates this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-15

Organization1:Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 3.11

Comment Excerpt Text:

The EPRI comments do not endorse any particular regulatory option put forth by US EPA in the 

June 21 proposal. The purpose of these comments is to provide technical information that can be 

used by US EPA and others to develop sound regulations based on the best technical information 

available.

Response: The Agency acknowledges and appreciates this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-59

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group
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Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

For the reasons discussed above, we do not believe EPA has the discretion under RCRA to 

implement a subtitle D option. However, we comment on specific major aspects of the subtitle D 

scheme below. We also submit comments to the record on particular aspects of the proposed 

subtitle D (and subtitle C) schemes in Appendices I, M, and N.

Response: The Agency acknowledges and appreciates this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-62

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

3. Subtitle D Regulations Cannot Establish “Cradle to Grave” Requirements 

EPA’s proposed subtitle D scheme does not establish “cradle to grave” requirements. The 

proposed criteria does not address the generation, storage, treatment or transport of coal ash prior 

to disposal. The handling of ash prior to disposal, however, can and does harm human health and 

the environment. In sections III.C.2.e, supra, these comments discuss the risk posed by fugitive 

dust that often occurs during storage and transport of coal ash. Failure to address these risks to 

air, groundwater, soil, and surface water from ash handling fails to establish a reasonable 

probability that there will be no adverse impacts on heath or the environment.

Response: The Agency acknowledges and appreciates this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-64

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Other Sections: 4.4.7.10

Comment Excerpt Text:
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5. Subtitle D Standards Cannot Address Facility-Wide Pollution And Historic Dumping 

And Therefore Cannot Establish A Reasonable Probability That There Will Be No Adverse 

Impacts On Human Health Or The Environment.

The absence of facility-wide corrective action standards is a fatal flaw in EPA’s proposed 

subtitle D regulations. Given the magnitude of historic dumping on power plant properties, it is a 

gross oversight not to require an investigation of all onsite disposal facilities, both operating and 

retired. Section III.C.2.h. supra, discusses the substantial risks posed by retired dumps. The 

absence of a requirement in the subtitle D scheme to address this risk fails to establish a 

reasonable probability that there will be no adverse impact on heath or the environment.

Response: The Agency acknowledges and appreciates this comment. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-65

Organization1:Earthjustice, et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

6. Subtitle D Standards Cannot Require Utilities to Identify Current and Past Disposal 

Units And Therefore Cannot Establish A Reasonable Probability That There Will Be No 

Adverse Impacts On Human Health Or The Environment.

With the listing of coal ash as a hazardous waste, utilities and landfill owners must comply with 

section 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act 

(CERCLA). [Footnote 359: 42 U.S.C. §9603(c).]. Section 103(c) requires coal ash generators, 

past or present owners of disposal facilities, and some transporters to notify the EPA of the 

existence of facilities where coal ash has been disposed, specifying the amount to be found there, 

and any known, suspected, or likely release from the site. Given the dearth of data on where and 

how billions of tons of coal ash have been disposed over the last six decades, it is essential for

the protection of health and the environment to collect such information. In a 1993 Department 

of Energy report, the Department found that there are 759 retired coal ash disposal units with a 

cumulative total of 1 billion tons of waste, but no information is available on where those units 

are located or the conditions of the disposal. [Footnote 360: ICF Resource, Incorporated, Coal 

Combustion Waste Management Study, prepared for U.S. Department of Energy (February 

1993), Docket ID No.: EPA-HQ-2006-0796.]. Identification of hundreds of historic dump sites 

will undoubtedly help to safeguard water supplies, especially since most older dumps are unlined 

and thus more likely to release harmful contaminants. Without this information, subtitle D fails 

to establish a reasonable probability that there will be no adverse impact on health or the 

environment.
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Response: The Agency is promulgating a final rule under subtitle D of RCRA. As part of this 

rulemaking effort, the Agency has determined that inactive CCR surface impoundments, as 

defined in the rule, are subject to the requirements of the rule. The reader is referred to the 

applicability section in Unit VI of the rule for a discussion of inactive units. 

Comment Number: TRANS-KNX-0065-1

Organization1:Southern Alliance for Clean Energy (spoke as employee and citizen)

Commenter1:Katherine Stokes

Commenter Type: Private Citizen

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:

Comment Excerpt Text:

I work at the Southern Alliance for Clean Energy. I'm also a graduate of the University of 

Tennessee civil engineering department. 

In college, I studied concrete strength. We had a lab where we would make our own concrete for 

testing, mixing aggregate with cement and water and sometimes adding fly ash. The fly ash came 

as a dry dust. We scooped it out of a bag. You wouldn't want to breathe in the particles, but the 

ash was well contained. 

This dry, treated and bagged version of coal ash is more similar to a household chemical waste 

that is suggested in EPA Subtitle D. However, this is not the type of coal ash we're talking about 

today. In fact, under Subtitle C, coal ash that is recycled for other uses such as concrete is 

exempt from the regulations.

EPA Response: The Agency acknowledges and appreciates the comment. The reader is 

referred to Units IV and VI of today’s rule for a discussion on beneficial use.