Denver

7700 East First Place

Denver, Colorado 80230

Phone 303.364.7700 Fax 303.364.7800 Washington

444 North Capitol Street, N.W. Suite 515

Washington, D.C. 20001

Phone 202.624.5400 Fax 202.737.1069 Website www.ncsl.org

Email info@ncsl.org Don Balfour

Senator

Georgia Senate

President, NCSL

Nancy Cyr

Senior Legal Counsel

Nebraska Legislative Research Office

Staff Chair, NCSL

William Pound

Executive Director October 15, 2009

Mathy Stanislaus, Assistant Administrator

Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

Re: Consultation on EPA's Proposed Standards for the Management of Coal Combustion Residuals

Generated by Electric Power Producers: Executi ve Order 13132, "Federalism;" and Unfunded

Mandates Reform Act (UMRA)

Dear Assistant Administrator Stanislaus:

We are writing on behalf of the National Conference of State Legislatures (NCSL) in response to

your request for consultation on the development of proposed standards for the management of

coal combustion residuals generated by electric power producers by the Environmental Protection

Agency (EPA). NCSL appreciates the EPA's commi tment to the principles of Executive Order

13132, "Federalism;" and the Unfunded Mandates Reform Act (UMRA), and values the opportunity

to participate in consultation regarding the proposed standards EPA is in the process of preparing.

Having offered comments during the recent review of the Agency's guidance documents concerning

federalism, NCSL is encouraged to see that the changes made to update the guidance and ensure its

relevancy to current regulatory efforts are already yielding results.

Currently, NCSL has not taken a position on the regulation of coal combustion waste (CCW) as

either hazardous or non-hazardous waste. However , the current approaches under consideration by

EPA raise several concerns for states in implementing potential new requirements under the

Resource Conservation and Recovery Act (RCRA). It is our understanding that EPA is considering

three possible regulatory scenarios – regulation as a non-hazardous waste under Subtitle D;

regulation as a hazardous waste under Subtitle C; or a hybrid Subtitle C/D approach. Information

collected by the Association of State and Territorial Solid Waste Management Officials

(ASTSWMO) indicates that the choice between regulation under RCRA Subtitle C (hazardous

waste) and RCRA Subtitle D (non-hazardous waste) could have significant disparate impacts to state

programs from both an administrative burden and financial costs perspective.

Under the Phase I survey, ASTSWMO sought information about State management practices for

disposal of CCW. The Phase II survey was to obtain information regarding the costs, workload, andOctober 15, 2009

p. 2

expertise impacts on State waste programs under the regulatory options being considered by EPA,

specifically RCRA Subtitle C (hazardous waste) and RCRA Subtitle D (non-hazardous waste). The

results of these two surveys indicate that the choice to regulate coal combustion waste under Subtitle

C (hazardous waste) will cost states at least twice as much as Subtitle D regulation and further strain

programs which are already facing funding shortfalls. In addition, implementing new

recommendations under Subtitle C (hazardous waste) will be both administratively burdensome and

in many cases duplicative of existing state requi rements. Of further concern for states is the

ramification of new recommendations under Subtitle C (hazardous waste) on the beneficial use of

coal combustion waste. In most States, a primary requirement for a beneficial use determination is

that the waste not be hazardous. Regulating coal combustion waste as a hazardous waste will have

the combined impact of limiting its beneficial use while increasing the amount of waste needed to be

handled by landfills.

For your information we have attached to our comments a summary of the ASTSWMO surveys,

which provide a more complete picture of the expected impact on states from the state officials

tasked with implementing these programs.

If you have questions about these comments, or fo r further discussion, please do not hesitate to call

on Tamra Spielvogel or Amanda Mason of our staff. Tamra Spielvogel can be reached at (202) 624-

8690 or tamra.spielvogel@ncsl.org. Amanda Mason can be reached at (202) 624-3572 or

amanda.mason@ncsl.org.

Sincerely,

Delegate Sally Young Jameson, Maryland Re presentative Roger Edward Barrus, Utah

Chair, NCSL Agriculture and Energy Committee Chair, NCSL Environment Committee

Cc: Richard Mattick, Office of Solid Waste and Emergency Response's (OSWER's) Policy

Analysis and Regulatory Management Staff, mattick.richard@epa.gov

Andrew Hanson, Office of Congressional and Intergovernmental Relations, at

Hanson.Andrew@epa.gov

## FEDERAL REGULATION OF DISPOSAL OF COAL COMBUSTION WASTE

FROM COAL FIRED POWER PLANTS

EPA CONSULTATION PURSUANT TO “FEDERALISM” EXECUTIVE ORDER

13132 AND THE UNFUNDED MANDATES REFORM ACT (UMRA)

COST ISSUES AFFECTING STATE ENVIRONMENTAL PROGRAMS

BACKGROUND

Federal Regulation of Disposal of Coal Ash

Coal combustion waste (CCW) was initially temporarily excluded from federal regulation as a

hazardous waste under the 1980 Solid Waste Disposal Act Amendments to RCRA. In 1999, the

U.S. Environmental Protection Agency (EPA) issued a Report to Congress indicating the

preliminary decision that coal combustion waste disposal should remain exempt from Subtitle C

(hazardous waste regulation). In 2000, after considering designating some CCW as hazardous

waste under Subtitle C, EPA published a final regulatory determination that the regulation

under Subtitle C was not warranted but that national regulations under Subtitle D (non

‐

hazardous waste) would be appropriate for coal combustion wastes disposed in landfills and

surface impoundments. However, EPA indicated in the regulatory determination that in

developing/reviewing future regulations, it would look at the extent to which CCW caused

actual or potential damage to human health and/or the environment, the environmental

effects of filling mines with CCW, the adequacy of existing regulations, and the effects of

mercury exposure from these activities. EPA also indicated that it would assess new

information on risks associated with managing fossil fuel combustion wastes as it became

available and monitor trends in protective management to see if regulation under Subtitle D

would close the gaps it identified; if not, the Agency indicated it may re

‐ examine its decision

not to regulate the wastes under Subtitle C. In August 2007, EPA issued a Notice of Data

Availability (NODA) on the Disposal of Coal Combustion Wastes in Landfills and Surface

Impoundments. In February 2008, ASTSWMO’s Fossil Fuel Combustion Waste Work Group

submitted comments on the NODA based in part on the results of a survey in which 33 States

responded. Generally, the States have argued that State regulations are sufficient for managing

CCW. ECOS took this position in a resolution passed in 2008. However, at the end of 2008, EPA

still had not made a determination about federal regulation of CCW. In deciding on an

appropriate regulatory course of action, a central question which must be addressed relates to

the basic regulatory underpinning of Subtitle D versus Subtitle C regulation

– that being, “Does

CCW routinely meet the established criteria for regulation as a hazardous waste?” The vast

experience of State programs is that CCW does not routinely meet the criteria.10/13/09

The Tennessee Valley Authority (TVA) spill in December 2008 brought renewed attention to the

question about the need for federal regulation of CCW from coal fired power plants. In

response to EPA’s fast

‐ track regulatory process for CCW, the ASTSWMO Board of Directors

formed a CCW Ad Hoc Workgroup in January 2009 to review and respond to EPA’s proposed

regulatory schemes.

In February 2009, ASTSWMO’s CCW Ad Hoc Workgroup surveyed State waste and water

program managers, working in conjunction with ECOS and ASIWPCA. The Phase I survey sought

information about State management practices for disposal of CCW. The survey revealed that,

contrary to claims from environmental groups and the media, most States regulate the disposal

of CCW. Thirty

‐ six out of 42 States that have facilities producing CCW have permit programs for

CCW landfills (86 percent).

EPA has indicated that it is considering 3 possible regulatory scenarios

– regulation as a non

‐

hazardous waste under Subtitle D; regulation as a hazardous waste under Subtitle C; or a hybrid

Subtitle C/D approach. According to EPA, the design and performance standards for the

proposed regulations will likely be the same no matter what regulatory scheme is chosen. Many

States voluntarily impose minimum performance standards for both landfills and surface

impoundments under Subtitle D, demonstrating that minimum federal Subtitle D requirements

will be sufficient to ensure that States properly regulate CCW.

On August 27, 2009, the ASTSWMO CCW Ad Hoc Workgroup conducted a follow

‐ up survey

(Phase II) to its February 2009 Coal Combustion Waste Survey of State management practices.

The purpose of the Phase II survey is to obtain information regarding the costs, workload, and

expertise impacts on State programs of regulating CCW under the RCRA Subtitle C and RCRA

Subtitle D regulatory options. Both Phase I and Phase II surveys sought information from States

about the beneficial uses of coal ash. An example of a beneficial use that is important to States

is the use of CCW in State highway projects. This use is not only cost

‐ effective for State

Departments of Transportation but also diverts these wastes from landfills. The American Coal

Ash Association reports that 43 percent of CCW is currently used in a beneficial way rather than

disposed in a landfill. If EPA decides to regulate CCW as a hazardous waste, most experts agree

it will have a chilling effect on the beneficial use of CCW. This is only one of the deleterious

effects on States of the potential federal regulation of CCW as a hazardous waste. ASTSWMO’s

State surveys reveal a number of other likely adverse impacts.

All 50 States and the District of Columbia responded to the Phase II survey. Obtaining 100%

participation of States in a survey with such a short turnaround is remarkable and demonstrates

how important this issue is to the States



### .

210/13/09



### ASTSWMO PHASE I AND PHASE II SURVEY RESULTS

STATE OPPOSITION TO SUBTITLE C REGULATION

State experience demonstrates CCW

is not a hazardous waste under federal regulations

“I have been regulating coal ash facilities for 26 years for the State of

West Virginia. I have never found a TCLP [Toxicity Characteristics

Leaching Procedure] or other chemical characterization that would

indicate that coal ash could be labeled as a hazardous waste. Most of

the time the metal concentrations, which would be the main

characteristic that could be considered hazardous, are at or below MCL

for drinking water.”

“[Regulating CCW] as a hazardous waste under RCRA Subtitle C is not

supported by the historic data that has been collected from generators

of [CCW in this State]which shows that CCW does not exceed RCRA

Subtitle C hazardous waste characteristics.”

“Municipal solid waste ash contains higher levels of contaminants [than

CCW]” All State respondents oppose EPA regulation of CCW under RCRA Subtitle C, with the exception

of two States (one State that by statute does not regulate CCW as a solid waste and one that

does not generate coal

combustion waste). A major

objection to listing CCW as a

hazardous waste is that the

vast State experience with

testing CCW using the

standard EPA test for

determining if a waste is

hazardous under the Resource

Conservation and Recovery Act

(RCRA) (the Toxicity

Characteristic Leaching

Procedure (TCLP)) shows that

it is generally not

characteristically hazardous. As

demonstrated by the State

survey results this is a critical point because regulating CCW as a hazardous waste is

burdensome on federally underfunded State waste programs and it also diverts precious

resources from protecting threats to health and the

environment posed by actual hazardous wastes. As one State

put it, “this would detract from regulation of real hazardous

waste.” EPA acknowledges that technically, CCW can be safely

regulated as a non

‐ hazardous waste under Subtitle D with the

appropriate management standards. This Administration’s

stated policy that regulatory decisions will be based on scientific

evidence demands that CCW should not be regulated a hazardous waste under RCRA Subtitle C. “The Department's position is that classifying

coal combustion residues under RCRA

Subtitle C would create unnecessary barriers

to the current management options without

producing any greater degree of

environmental or public health protection.”

IMPACT ON EXISTING HAZARDOUS WASTE REGULATION

If CCW meets the established scientific threshold criteria for regulation as a hazardous waste,

then the question of Subtitle D versus Subtitle C is moot

– the material should be regulated

under Subtitle C. However, this determination has not been made, and in fact the opposite

determination was made by EPA in its 2000 regulatory determination.

A major concern with adding lower risk, high volume wastes which do not meet the threshold

criteria to the Subtitle C inventory is that those higher threat wastes which do meet the criteria

and legitimately warrant Subtitle C controls will become lost in the shuffle due to the staggering

difference in volume (2 million tons versus 134 million tons per year) and will divert attention

and vigilance from the higher threat waste streams.

310/13/09

STATE WASTE PROGRAM CAPACITY

The fiscal impact on States of EPA’s proposed regulations cannot be ignored, particularly in light

of the budget crises so many States are experiencing. Adding the unnecessary burden of

regulating a non

‐ hazardous waste (i.e., one that does not meet RCRA hazardous waste testing

standards) under Subtitle C, which is already severely underfunded, when so many States are

imposing staff furloughs, hiring freezes and layoffs is unthinkable. Regulating CCW as a

hazardous waste under Subtitle C will impose a significantly greater resource burden on State

waste programs than regulating it as a non

‐ hazardous waste under Subtitle D, which many

States are already doing.

When asked how many facilities that could be affected by the new regulations have a Subtitle C

disposal permit, all 43 States that responded to this question said “none.” The capacity to

regulate those facilities under Subtitle C does not exist in most States. At least 38 States will

need additional Full Time Equivalents (FTEs) staff if EPA regulates CCW as a hazardous waste

under Subtitle C. The increased workload will require additional technical expertise for the

various Subtitle C program elements: Permitting, Inspections (including storage and record

‐ keeping requirements), Financial Assurance, Facility

‐ wide Corrective Action, Closure (Interim

Status), Post

‐ Closure Permits, Generator/Transporter Requirements, and Siting Controls.

Several States could not even guess what impact regulating CCW under Subtitle C would have

on their programs, but 29 States estimated that at least 140 FTEs would have to be hired at a

cost of $12M, or an estimated $414K per State.

By contrast, only 18 States will need additional FTEs if EPA regulates CCW under Subtitle D. In

other words, twice as many States will be impacted financially under Subtitle C regulation

– a

full three quarters of the States in this country. That vast majority of States indicated that no

new FTEs will be needed if CCW is regulated under Subtitle D. The cost estimate is significantly

less as well. The 18 States that could estimate how many additional FTEs would be needed if

EPA regulates CCW under Subtitle D, estimated that 40 FTEs would be needed at a cost of

$3.8M/year or an estimated $211K per State.

There is no doubt that adding CCW to the wastes that are regulated as hazardous wastes will be

devastating to State Subtitle C programs that are already underfunded. ASTSWMO’s Hazardous

Waste Subcommittee conducted a pilot program to determine the cost to States for

implementing a complete and adequate RCRA Subtitle C Program (hereafter referred to as

“RCRA C” or “RCRA”) in 2006. The report entitled State RCRA Subtitle C Core Hazardous Waste

Management Program Implementation Costs

‐ Final Report (January 2007) revealed that the

cost to States of implementing a complete and adequate RCRA Program (converted to 2008

dollars) is, at a minimum, $275M in State and federal funding. The State share should be $69M

(25 percent) with the remaining $206M in State Hazardous Waste Financial Assistance grants.

However, the FY 2008 federal appropriation was slightly less than half of what States needed.

Congress appropriated $101M rather than $206M. States are making up the difference for

these federally mandated programs from already strained State budgets. These programs are

already stretched to the breaking point. Expectations should not be high for a successful

410/13/09

incorporation of CCW into State Subtitle C programs without the guarantee of commensurate

increases in State grant funding.

The difference in cost to the States between Subtitle C and Subtitle D is a significant factor in

the current climate of substantial State budget revenue shortfalls. Either way, nearly all States

(94%) will not be able to add FTEs to accommodate the additional workload without financial

support from EPA.

TRAINING COSTS

A significant majority of States (79%) indicated staff training will be needed if CCW is regulated

under RCRA Subtitle C. That is another cost that is not accounted for in the survey results. Not

only will training be needed, it will also be costly to develop. There have been few if any new

Subtitle C facilities permitted for 15

‐ 20 years, and most Interim Status facility closures were

performed and Initial Operating Permits issued in the 1980’s. Expertise and training is a

significant issue because it has been that long since some States have gone through the process

needed for permitting a new facility, issuing an initial permit to an Interim Status facility, or

overseeing closure/post

‐ closure activities and issuing initial Post

‐ Closure permits for Interim

Status facilities.

Fewer States (29%) will need staff training if CCW is regulated under RCRA Subtitle D.

BENEFICIAL USE

A compelling reason not to impose Subtitle C regulations is that the beneficial use of CCW has

been very successful. As noted above, the vast State experience with testing CCW shows that it

is generally not characteristically hazardous. Coal

combustion wastes rarely if ever fail the criteria by

which materials are determined to be hazardous

waste. Regulation under RCRA Subtitle C has the

potential to put an end to many beneficial uses for

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 chilling effect on its beneficial use. This has

happened previously with other materials. For

example, the DuPont Edgemoor titanium dioxide

plant in Delaware produced a material called "Iron

Rich" which was used as a fill material. It was used in

several construction projects in a pilot project

capacity until it was deemed to be a listed hazardous

waste (K178). The State is now having issues

developing a remedial alternative for the stockpile of material left in place, and the material

that is being newly generated is being managed and disposed of as hazardous waste. State experts agree

– designating CCW as

a hazardous waste will end beneficial use

“Regulation under Subtitle C would likely

discourage beneficial uses of coal ash in

concrete and Portland cement type

applications.”

“Regulation of coal ash under RCRA

Subtitle C would impede recycling and

discourage its beneficial use and instead

cause the disposal of a valuable resource

in landfills and/or surface

impoundments.”

“Coal ash has been beneficially reused in

our state. Regulation under Subtitle C

would likely stop this.”

510/13/09

This concern is also supported by the on

‐ going controversy and legal challenges over the recent

changes to the Definition of Solid Waste (DSW), which are primarily related to concerns over

the appropriateness of relaxing regulatory controls on defined hazardous wastes for the

purpose of encouraging reuse and recycling.

DISPOSAL CAPACITY

The American Coal Ash Association reports that 43 percent of CCW is currently used in

beneficial way rather than disposed in a landfill. Currently, 56 percent, or 75 million tons, is not

beneficially used. States are concerned that designating CCW as a hazardous waste under

Subtitle C will prevent beneficial use of CCW (as was the case with “Iron Rich” noted above)

which will result in 134 million tons of CCW being shipped to hazardous waste landfills annually.

According to EPA’s National Biennial RCRA Hazardous Waste Report, in 2007 (the most recent

data published) 1.6 million tons of hazardous waste was received by off

‐ site hazardous waste

landfills and surface impoundments

( http://www.epa.gov/epawaste/infor esources/data/br07/national07.pdf

, Exhibit 3.9). Using a conservative

estimate that 2 million tons of hazardous waste is disposed at off

‐ site facilities annually,

disposing of CCW as a hazardous waste will result in as much as sixty

‐ seven times more waste

being disposed in landfills. Even if beneficial use continues at its current rate, an additional 75

million tons per year (or thirty

‐ eight times) more waste will have to be disposed in hazardous

waste landfills annually.

Even more alarming is the fact that disposing of CCW in hazardous waste landfills will consume

the Commercial Subtitle C Management Capacity projected for the year 2013 in a matter of

months. EPA’s expected maximum capacity for Subtitle C landfill capacity for 2013 is 34 million

tons ( http://www.epa.gov/osw/haza rd/tsd/capacit y/appb_lf.pdf ). Assuming all CCW will be disposed in

commercial Subtitle C landfills, the 2013 capacity will be exhausted within 3 months. Even if

beneficial use continues at its current rate, the 2013 capacity will be exhausted in less than 6

months. In the unlikely event that beneficial use continues at its current rate and half of the

coal fired utilities seek Subtitle C permits for the disposal facilities that they manage, the 2013

capacity will be consumed in less than one year. Consuming the commercial hazardous waste

landfill capacity not only means that CCW will begin to pile up unmanaged at utilities, the

current 2 million tons of hazardous waste generated by industry and hazardous waste site

remedial activities will also begin to accumulate on

‐ site. This will bring a halt Superfund

cleanups that require disposal of hazardous wastes as well as having a devastating impact on

vital industries and facilities generating nearly half of the country’s electrical power. It can take

years to permit a new hazardous waste landfill.

610/13/09

States already know that there is not sufficient hazardous waste landfill capacity if CCW is

designated a hazardous waste, as reflected in the Phase II survey.

• 91% of States responding to the question do not have sufficient existing permitted

Subtitle C disposal capacity for all

CCW in

‐ State.

7 • 86% of States responding to the

question will need new off

‐ site

capacity to be sited if CCW is

regulated as a hazardous waste.

Conversely, a majority of States have

sufficient permitted non

‐ hazardous

waste disposal capacity for CCW. More

than half of that permitted capacity is located on

‐ site at the generator facility which

significantly reduces the amount of coal ash that must be transported for disposal.

Siting hazardous waste landfills is onerous ‐ it has been 15

‐

20 years since new hazardous waste landfills have been

permitted

“The Massachusetts statute governing hazardous waste

has onerous siting standards that would make it very

difficult to site any facility to dispose of coal ash.”

“Kansas state law prohibits the landfilling of hazardous

waste so our laws would either need to be changed or all

waste would need to be exported which is totally

impractical.”

• Only 31% of States responding to the question do not have sufficient existing permitted

non

‐ hazardous waste disposal capacity for all CCW in

‐ State.

• Only 35% of States responding to the question will need new off

‐ site capacity to be

sited if CCW is regulated as non

‐ hazardous waste.

Transportation issues associated with CCW designated as hazardous waste is another cause for

concern. According to EPA’s most recent data, 7 million tons of hazardous waste was shipped in

one year by 16,258 shippers ( http://www.epa.gov/epawaste/infores ources/data/br07/national07.pdf

,

Exhibit 3.1). Each State has rigorous standards for licensing hazardous waste transporters. Most

CCW is currently managed on

‐ site at the generation facility. If the material becomes regulated

as a hazardous waste, it is likely that much of

this material will then be managed off

‐ site,

which will increase hazardous waste

transportation by up to 20 times more waste

than the current annual rate. The impact on

transportation infrastructure and

communities through which this new

“hazardous waste” will be transported will be

overwhelming. Only a handful of States have

commercial Subtitle C landfills, which means

that most CCW will have to be shipped out of State. Only a handful of States have commercial Subtitle C facilties

“We do not have any Subtitle C capacity. All waste would

need to be shipped out of state.”

“There is only one commercial Subtitle C landfill in the state

and it only receives hazardous waste treated by the owner of

the site.”

“Michigan only has one commercial subtitle C permitted

facility, which is reaching capacity.”10/13/09

REGULATORY BURDEN

Drafting, proposing and finalizing regulations is a labor intensive and costly process. Currently,

36 out of 42 States have CCW solid waste permit programs for CCW landfills (86 percent). Only

3 States responded “no” and 3 States did not respond. Most States regulate CCW under general

solid waste regulations (43 percent) and general industrial waste regulations (43 percent).

Several States use regulations specifically designed for CCW (29 percent). Many States

voluntarily impose minimum performance standards (such as those being considered by EPA for

regulation of CCW), demonstrating that minimum federal Subtitle D requirements will be

sufficient to ensure that State regulation of CCW is protective of human health and the

environment.

Percentage of States with CCW landfills

with specific regulatory requirements

Regulatory

Requirement Landfills

(%)

Bottom Liner 64%

GW Monitoring 81%

Leachate Collection 52%

Final Cover System 79%

Post Closure Care 79%

Siting Controls 83%

Corrective Action 86%

Structural Stability 69%

Financial Assurance 69%

If EPA designates CCW as a hazardous waste, all forty

‐ eight RCRA authorized States will have to

develop new Subtitle C regulations, despite the fact that regulation under Subtitle D will

provide sufficient protection of health and the environment. This is a very costly and

unnecessary burden that will divert resources from more productive activities.

810/13/09

FEDERAL VERSUS STATE AUTHORITY

EPA acknowledges that CCW can be safely regulated under Subtitle D. EPA suggests there are 2

primary reasons that EPA may propose Subtitle C regulation: 1) Subtitle D does not allow

Federal enforcement except under citizen suits; and 2) EPA cannot require States to permit

landfills under Subtitle D.

Enforcement

EPA suggests that Subtitle C is necessary so that EPA will have direct enforcement authority.

States are held accountable by their citizens through State statutes and obligations to regularly

inspect landfills and investigate complaints, and to utilize State enforcement authority as

warranted. Subtitle D requires State programs to have the necessary enforcement authority as

part of the federal approval process. This approach has been successful for over a decade as

evidenced by the relative absence of federal citizen suits or demonstrated failure of State

Subtitle D programs. The States are not aware of EPA expressing concerns regarding this State

based enforcement approach in the municipal solid waste landfill program. A similar Subtitle D

approach can successfully ensure compliance with minimum federal standards for coal

combustion waste disposal facilities.

Permitting Requirement

While EPA cannot require that States permit Subtitle D facilities, most States do so without a

federal mandate. ASTSWMO’s Phase I survey revealed that thirty

‐ six out of 42 States in which

CCW is generated have permit programs for CCW landfills (86 percent). Only 3 States

responded “no” and 3 States did not respond. Imposing the more stringent requirements of

Subtitle C regulation on States to ensure that they permit facilities is not justified when most

States already do so.

LEGISLATIVE ISSUES

EPA’s proposed regulation of CCW will have a significant impact on both State Executive and

Legislative branches. Whether EPA proposes regulation as hazardous (Subtitle C) or non

‐

hazardous (Subtitle D), funding State environmental agency programs will become even more

difficult. The budget impact will be more substantial if EPA proposes regulating CCW as a

hazardous waste not only because the cost will be greater for Subtitle C regulation, but also as

noted above, federal funding for State hazardous waste programs is already only half of what

States need from the federal government to fund adequate Subtitle C core programs.

Mandating another significant federal standard for these programs without commensurate

guarantees of increased and sustained federal funding support will be devastating to State

environmental program budgets.

In the ASTSWMO survey, States also commented on other legislative impacts of EPA’s proposed

regulation of CCW. For example:

910/13/09

Florida

“If USEPA decides to call coal ash a hazardous waste under Subtitle C, then current Florida law

(Section 403.7222, Florida Statutes) would prohibit the disposal of this coal ash in landfills

unless it was first treated to be non

‐ hazardous. This could add tremendous costs to the power

industry for managing this material. They would either have to treat their ash before disposal

or ship it out of State for disposal. It is also likely that if existing disposal areas were disturbed

after USEPA determined coal ash was a hazardous waste, then these old disposal sites could

become hazardous waste disposal units too.”

Kansas

“Kansas state law prohibits the landfilling of hazardous waste so our laws would either need to

be changed or all waste would need to be exported which is totally impractical.”

Michigan

“RCRA Subtitle C wastes in Michigan are currently regulated under Part 111, Hazardous Waste

Management, of the Natural Resources and Environmental Protection Act (NREPA). The

regulation of coal ash under full RCRA Subtitle C would end the current beneficial uses of coal

ash. Existing surface impoundments and landfills would be subject to more stringent design

standards and would require either 1) retrofitting of existing landfills (if even possible) or 2)

closure of those disposal facilities. Neither of these options could be implemented

immediately.”

CONCLUSION

Most States believe that federal regulation of CCW is not necessary, but do recognize that,

particularly since the TVA incident, it is inevitable that EPA will promulgate some form of

federal regulation of coal combustion waste. Considering the anticipated State fiscal impacts,

the existing status of State CCW regulatory efforts, and the disposal capacity issues, Subtitle D

regulation is the more appropriate course.

10