Comments by the Maryland Department of the Environm ent Concerning the

United States Environmental Protection Agency’s Pro posals to Regulate

Coal Combustion Residuals (CCRs), EPA Docket ID No. EPA-HQ-RCRA-2009-0640

November 19, 2010

I. Introduction . This document includes the comments of the Maryl and Department of the Environment (“MDE”, the “Department”) to the United States Environmental Protection Agency (USEPA) concerning the proposed f ederal regulations governing coal combustion residuals (“CCRs”), as described in EPA’s Docket ID No. EPA-HQRCRA-2009-0640. Except where otherwise indicated, page and table numbers referenced herein refer to the Federal Register, Vol. 75, No. 118, dated Monday, June 21, 2010, in which the regulatory proposal was published.

This comment document is divided into several secti ons to assist in its review: - Section I: Introduction
- Section II: General Comments - Section III: Comments Relating to “RCRA D” Propos al - Section IV: Comments Relating to “RCRA C” Proposa l - Section V: Responses to EPA Requests for Addition al Information - Appendix: Recommended Routine Groundwater Monitor ing Parameters for Both RCRA C and D Proposals.

Questions concerning the comments provided herein m ay be directed to:

Mr. Horacio Tablada, Director Land Management Administration Maryland Department of the Environment 1800 Washington Boulevard
Baltimore MD 21230-1719 (410) 537-3305

II. General Comments. The following comments are generally applicable t o the strategies proposed by EPA.

A. The Department strongly agrees with the need for federal regulation of coal combustion residuals. The Department has repeatedly voiced it s position based on Maryland’s experience with groundwater contamination from CCR disposal sites that there should be a federal threshold for regulation, and that reg ulation should not be left to individual states. Beginning in 2007, Maryland has proposed a nd implemented new rules for CCR generators including reporting, new rules for dispo sal, obtained and implemented legislative authorization for a per ton fee to oper ate the programs, and is now developing rules to govern safe beneficial re-use o f CCRs. Maryland also generally agrees with the technical requirements of the propo sed approaches proposed. The Department, however, does not fully support either of the proposed regulatory options
for the reasons detailed here.

B. The Department, while acknowledging the need for a federal baseline of regulation, does not support the regulation of CCR under RCRA S ubtitle C because the criteria for determining whether a waste is a hazardous waste do not support a hazardous waste classification. The reasons for this include the f ollowing:Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 2 1. Reviewing the analytical data for CCRs availabl e in the docket and elsewhere, including data that is submitted annually to this D epartment by the Maryland CCR generators, it is noted that when the same criteria that have been applied to every other solid waste since the inception of the hazard ous waste program (e.g., the TCLP test and other waste characterization methods) is applied to CCRs, only a very small percentage would be characterized as haz ardous waste.

EPA presents summary data on analyses of CCRs in Ta ble 2 on page 35138 of the Federal Register

notice of the proposed rule. Examination of the s ource data for the summary reveals that none of the samples of fly ash , bottom ash, or flue gas desulfurization (FGD) waste analyzed exhibited the toxicity characteristic (38 samples, total). For boiler slag, the toxicity cha racteristic was an issue only for cadmium, lead and mercury, and these results could well be within the range of experimental error. Twenty-six of thirty-three sam ples of boiler slag were non-detect for cadmium, the maximum observed TCLP concentratio n was 1.02 MG/L (regulatory limit 1.0), and the mean TCLP concentra tion was reported as 0.0437 MG/L. Twenty of thirty-three samples of boiler sla g were non-detect for lead, the maximum observed TCLP concentration was 7.6 MG/L (r egulatory limit 5.0), and the mean TCLP concentration was reported as 0.260 MG/L. Thirty two of the thirty three samples of boiler slag were non-detect for mercury, the maximum observed TCLP concentration was 1.0 MG/L (regulatory limit 0.2), and the mean TCLP concentration was reported as 0.0306 MG/L (assigning non-detects a value equal to one half the detection limit.)

Some of the sample results, such as the single exce edance for mercury in a sample of boiler slag, may well be outliers or an artifact of a sampling or analytical error. In any event, the data show that 3 of the 4 forms of C CRs do not exhibit the toxicity characteristic, and boiler slag only does so infreq uently, and at levels minimally above the regulatory limit, with the overall mean c oncentration well below the limit. This does not provide a justifiable basis for desig nating CCRs to be a category of waste that must be regulated in a manner equivalent to a listed hazardous waste. Therefore, this analytical data does not support th e conclusion that CCRs should be managed as a "special waste" under RCRA Subtitle C.

2. For many years, the existing testing protocols for hazardous waste have worked well to ensure proper and safe disposal. The appro ach of identifying these materials as a “special waste” undermines the predictability and usefulness of the current requirements. Singling out CCRs to be managed at a higher level than other waste streams that are more difficult to manage safely, a nd that pound-for-pound present a higher level of risk, is a potentially significant waste of resources.

It also jeopardizes a significant opportunity to sa fely reuse these materials. The Department believes that the phenomenon referred to by EPA as a stigma can be attached to certain waste materials, and that this is likely to be amplified if EPA decides to regulated the material under RCRA C 3. EPA’s Risk Assessment included in the Docket pr ovides ample evidence that available “RCRA D” technology, including the liner and capping system, provides a high level of protection and risk reduction for CCR disposal. It is noted that technically EPA concurs, as the proposed “C” rule w ould allow use of a liner that is equivalent to a “RCRA D” liner rather than the doub le liner required for trueMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 3 hazardous wastes. The other additional burdens of regulation under RCRA C are
not warranted.

4. Beyond the major policy implication of developi ng an alternative category of waste under the existing regulatory scheme that is widely viewed as having worked well, Maryland is also particularly concerned about the challenges of implementing such a program including disposal capacity and new resources needed to implement the option. Maryland, as well as 34 other states, have no permitted, active hazardous waste landfills. We rely on commercial f acilities located out-of-state for the disposal of RCRA C wastes. Under the RCRA Sub title C option, CCRs, of course, must be disposed of in RCRA C facilities. Generators of hazardous materials will be competing with the electric utili ties for disposal capacity. We are concerned that this competition may have an uninten ded consequence of driving the disposal costs up beyond the reach of smaller busin esses that are generators, forcing closure and possibly even illegal disposal if generators lose access to legal disposal at reasonable cost.

This is suggested by Maryland’s experience in enfor cing our own statutes against open dumping. Far more enforcement actions have be en taken against small operators for open dumping and operating unpermitte d landfills than the larger waste disposal companies, which generally can pay for leg itimate disposal. It is the smaller companies or individual haulers that may get into c ash-flow difficulties, and find that the legitimate disposal sites refuse them access un til they pay their bills. Some operators have then chosen to utilize illegal dumps ites to avoid the cost of disposal at legitimate sites, just to keep their business ru nning, or to give themselves a financial advantage over their competition.

For example, between the period July 1, 2009 and Ju ne 30, 2010, of the 19 complaints of solid waste dumping investigated by M DE where the responsible party has been identified, 17 were individuals, 2 were sm all companies, and none were large, established waste hauling companies. It is anticipated that a significant increase in the fees for disposing of hazardous was te would lead to similar temptations among the smaller generators and small haulers of industrial waste, to either find ways to avoid paying legitimate disposa l costs by improperly managing their own wastes, or to hire the “low bid” hauler w ho can undercut their competition because they avoid legitimate disposal costs throug h illegal dumping. We are confident that investigation of EPA’s records of il legal hazardous waste disposal cases would reveal the same pattern.

5. With respect to the development of the risk asse ssment provided in the Preamble,
it is noted that no attenuation factors were includ ed when evaluating the leaching test results (see notes to Tables 4 and 5, page 351 41 and 2 of the 6/21/10 Federal Register). It is noted that when EPA originally es tablished first the EP Toxicity Test and then the Toxicity Characteristic Leaching Proce dure (TCLP) as the standards for determining whether a material is hazardous by virt ue of what it leaches, it assumed
that there would be a 100x dilution factor between the entry of the leachate into a groundwater flow system, and its uptake by a water supply well. This consideration seems to have been ignored here. While the Departme nt believes that this is an appropriate strategy when evaluating the potential for beneficially-used materials to leach in order to minimize the potential for risks posed by products available to theMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 4 public, it is not appropriate for a determination o f whether a material should be regulated under RCRA C.

C. Throughout the sections of the proposed regulati on governing groundwater monitoring and remediation, 40 CFR 257.90 to .98, heavy relian ce on third-party contractors to make important determinations is noted. While a si milar approach was taken in 40 CFR 258, it was done with the knowledge that most if no t all States would avail themselves of the opportunity to seek EPA program approval to all ow them to provide oversight, which is an intrinsic part of the 40 CFR 258 regulations, and which in fact occurred. Although the Department believes that most if not all engine ers and geologists are reputable and reliable, it is noted that this certainly has the p otential for abuse, and does not allow for the involvement of experienced State geologists sho rt of federal litigation. The rule as proposed does not include this important safeguard. While the use of consultants to prepare plans, demonstrations and certifications is necessary and desirable, sole reliance on the judgment of one party is not. The approach taken in 40 CFR 258, which provides for the state to act in an oversight role, is considerably safer than complete reliance on contractors paid by the operator. It i s noted that in the Preamble, EPA itself acknowledges this as a concern.

D. Moreover, compared to the success of 40 CFR 258 which is largely implemented by the States, the Open Dump rules under 40 CFR 257 have b een largely ineffectual. The Department is not aware of any “257” cases brought by citizens or the State in Maryland in over 20 years. However, the Department routinel y enforces cases that pertain to the requirements of 40 CFR 258, albeit usually through the enforcement of our own matching regulations. Given the complexity of the subject matter, citizens generally rely on the State to protect them.

E. For these reasons, Maryland suggests a system li ke that used for municipal solid wastes under 40 CFR 258, where States must integrate the f ederal 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 in dustrial waste permitting units to proposed CCR disposal facilities, to insure that th ese 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 propose d RCRA D option, whom may not be as fully cognizant of the geotechnical condition s that exist in any given area, or be as familiar with the historical operating conditions a t a particular site. It is also more desirable than the excessive requirements of the RC RA 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 ha ulers and the States.

As a secondary choice, a scenario similar to EPA’s previously proposed “kiln dust” regulation, in which materials that are not handled properly are hazardous waste but properly managed materials are regulated under Subt itle D, would also be acceptable if properly implemented. It is noted that that scenar io would also meet EPA’s needs with respect to the ability to directly enforce the regu lations where it deemed it appropriate for the protection of the environment and the publi c health.

F. Also, EPA’s choice not to allow the States to ev aluate and approve enhancements to important elements such as the liner design and gro undwater monitoring system, as is the case under the 40 CFR 258 regulations, makes th is a risky proposal. The inability ofMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 5 the States to specify more stringent monitoring req uirements under the federal rule, such as more monitoring wells than just one upgradi ent and three down, has two negative effects: First, it weakens state enforceme nt under its own rules because it provides the defense that “the federal rule doesn’t require more than 4 monitoring wells, so why is the State doing so?” and secondly, requi res states to have duplicative rules to provide them with that authority, making it difficu lt for operators, who won’t have just one set of applicable rules to follow. We understand that EPA does not wish to allow states to reduce monitoring parameters. However, we belie ve that EPA could change the rule to allow groundwater monitoring plans approved by t he States as long as they are at least as stringent as required under the proposed r ule.

G. While we understand that EPA strongly desires to have a direct role in the enforcement of the rules applicable to CCR s, we suggest that E PA consider using the “as stringent
as federal law” standard and ensure a threshold lev el of protection for disposal in that manner. In the interim, establishing national stand ards and working with the States, which already have permitting and enforcement capab ilities, would be the most effective means of implementing these standards in a practica l way in the least amount of time.

H. With respect to EPA’s argument that “...RCRA subti tle 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 Regi ster), the Department notes that the principal problems that EPA has described in th e Damage Cases supporting this rule making were principally involved with disposal of CCRs, not transportation, storage, or treatment. The Department affirms that the BBSS site in Anne Arundel County, Maryland, which was cited by EPA as a site where co nfirmed impact due to CCRs occurred, is in fact such a case. However, some ot her commentors have used this and other damage cases to support the position that the States have not effectively addressed coal combustion residuals, and that there fore 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 in cluded a very significant penalty as well as remedial, closure, and post-closure 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, stora ge, transportation, and use in mine reclamation that include permitting, design, monito ring and closure requirements that are very similar to and in some areas more protecti ve than the proposed federal regulations. This, as well as the success of the 4 0 CFR 258 regulations governing municipal waste landfills, makes the case that desi gnation 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.

I. Maryland does not have experience with wet-ash i mpoundments, as there are currently none in Maryland. However, as there are impoundmen ts adjacent to Maryland waters, Maryland supports EPA’s effort to insure the safety of these structures.Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 6 III. Comments Relating to “RCRA D” proposal. In addition to the “RCRA D” issues discussed in Section II, General Comments, the foll owing specific comments are
offered:

A. Proposed Regulation 40 CFR 257.6 : Due to fluctuations in groundwater levels that in many geological settings can exceed 10 feet over the course of the year, the proposed 2’ minimum buffer between the base of the liner and the top of the water table is considered to be insufficiently prot ective. It is recommended that:

1. The minimum vertical separation be at least 3 fe et from the base of the liner components; and

2. The distance should be measured from the top of the maximum anticipated occurrence of groundwater, based on obs ervation of the water table at the site for a specified time such as at l east a year, geological observations of the formation, and observation of w ater level fluctuation in
wells screened in the same formation and in a simil ar hydrologic setting,
where available.

B. Proposed Regulation 40 CFR 257.8 : This regulation establishes a limit of 35 mg/m 3 for particulate releases from CCR disposal sites. However, it is noted that a particulate standard from an area site like a lan dfill would be very hard to accurately assess, for all parties – the operator, the State, and any private citizen. Air monitoring devices are subject to loc al air movements, making even a negative result problematic. Promulgating a stan dard that cannot be readily proven or disproven is useless for the protection o f public health, while requiring enormous efforts and resources on the part of the o perator and any regulatory agency to attempt to assess. It is recommended tha t the section either provide much greater detail as to the means to be employed to be evaluate this standard, or the standard be deleted in favor of more stringe nt requirements for dust prevention and management, such as immediate placem ent, compaction, conditioning of the material with water and other d ust control agents, vegetative stabilization of inactive areas, and traffic contro l to avoid the release of dust from
conditioned areas.

C. Proposed Regulation 40 CFR 257.9 : It is recommended that in addition to approval of a groundwater monitoring system by a th ird party geologist or engineer, a provision be included for approval of a monitoring plan by a State regulatory authority. In those states where facili ties would be subject to both State and federal regulation, such a provision woul d allow a facility to attain satisfaction of the federal rule by obtaining local approval.

The Department is concerned that the inability of t he States to specify more stringent monitoring requirements under the federal rule, such as more monitoring wells than just one upgradient and three downgradient wells, has two negative effects: First, it weakens state enforceme nt under its own rules because it provides the defense that “the federal rule does n’t require more than 4 monitoring wells, so why is the State doing so?” an d secondly, it incentivizes states to have State rules to provide them with tha t authority, making it difficult for operators, who won’t have just one set of applicabl e rules to follow. We
understand that EPA does not wish to allow states t o reduce monitoring parameters. However, we believe that EPA could cha nge the rule to allowMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 7 groundwater monitoring plans approved by the States as long as they are at least as stringent as required under the proposed rule.

D. Proposed Regulation 40 CFR 257.93(i)(2): This proposed regulation provides that an operator must perform statistical analyses on the groundwater monitoring sampling results to determine if there has been a r elease from the monitored facility. However, the regulation that specifies w hen this must occur is very vague, and potentially unenforceable. Specifically , 40 CFR 257.93(i)(2) specifies: “Within a reasonable period of time afte r completing sampling and analysis, the owner or operator of the CCR landfill or surface impoundment must determine whether there has been a statistically si gnificant increase over background at each monitoring well.” It is recomme nded that a determinable and enforceable time requirement e.g., 90 days, be inse rted in place of “a reasonable period”.

E. Proposed Regulation 40 CFR 257.98(d)(2): This regulation would allow an operator to declare a remedial activity to be compl ete if the monitoring well analyses produce results below the established grou ndwater protection standards for at least three years. Specifically, the regulations provides: “(2) Compliance with the groundwater protection standard s established under §§ 257.95 (h) or (h) has been achieved by demonstratin g that concentrations of Appendix IV constituents have not exceeded the grou ndwater protection standard(s) for a period of three consecutive years using the statistical procedures and performance standards in § 257.93 (g ) and (h).” This is considered to be an inadequate standard, and we not e that EPA expresses concern about it in the Preamble. In Maryland, we have observed sites that have had protective or remedial measures installed such as caps and groundwater pump-and-treat systems that were observed to reduce the concentrations of contaminants to below MCLs, only to observe MCLs be ing exceeded after the system was deactivated. An example in which EPA ha d some involvement is the Scarboro Landfill in Harford County, Maryland, at w hich an active groundwater extraction and treatment system was installed under a Consent Order with the Department, which subsequently met standards and wa s allowed to be turned off. Some years later, MCLs were again exceeded, a nd the extraction system was reactivated. For these reasons, it is recommen ded that this condition of
release be eliminated.

F. Proposed Regulation 40 CFR 257.100 : It is noted that some States have industrial waste or CCR regulations that require sp ecific minimum designs that are at least as good if not superior to the minimum standards in the proposed regulation. Providing a mechanism to acknowledge a nd accept superior designs would not only make the environment safer, it would also make it easier for operators to comply with duplicative regulations. It is recommended that a provision be inserted allowing for alternative cap designs that are:

1) Approved under State regulations for CCR landfil ls and

2) Demonstrably equal or superior in performance to the cap specified in the proposed rule, as determined using appropriate HELP modeling or other models accepted by EPA.Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 8 G. Proposed Appendix III to 40 CFR 257 : This Appendix specifies the parameters to be used for detection monitoring. Maryland conside rs the parameter list to be inadequate to determine whether a release from a CC R facility has occurred, and recommends an expanded list, which is included as t he Appendix to these comments. This comment is applicable to both “C” a nd “D” proposals.

IV. Comments Relating to “RCRA C“ Proposal. The Department has serious concerns about the likely impact on Maryland and ot her State regulatory programs if EPA selects the Subtitle C option. These concerns relate to efforts and resources
that would be needed to:

• meet permitting requirements under Subtitle C for operating units and post-closure

care,

• evaluate closure plans for surface impoundments re quired to close by specified deadlines,

• provide oversight of closure of disposal units,

• implement and provide oversight of financial assur ance requirements for permitted facilities,

• implement facility-wide corrective action requirem ents established by §3004(u) of RCRA, and

• oversee and enforce ancillary hazardous waste mana gement requirements applicable to generators of hazardous waste at faci lities generating CCRs.

These issues are discussed in more detail below.

A. Subtitle C Permitting and Resources. In the Regulatory impact analysis for the proposed rule, EPA identified 495 electric generati ng stations potentially affected by the
rule. EPA has estimated that 300 landfills and 584 surface impoundments are used to dispose of CCRs at these power plants, and has stat ed that, additionally, a small number of power plants dispose of their CCRs off-si te (page 35149, 6/21/2010 Federal Register). EPA believes (page 35158) that on-site disposal will continue to be the primary disposal option used by generators of CCRs following the promulgation of federal regulations.

This implies the need for a massive permitting eff ort to be implemented and overseen by the States. The impact on individual st ates will be even more severe than these numbers imply, since the 495 power plants aff ected by the rule are not distributed evenly across the country. States with a dispropor tionate share of the plants (such as PA (34 plants), IN (26), OH (26), IL (25), NC (22), MI (22), MO (20), TX (19)) will face disproportionate challenges. Maryland has 7 major g enerating facilities that would be affected by the proposed rule, with possible impact from out-of-state generators that may use Maryland ash management facilities, such as the Mount Storm generating station in West Virginia.

States were recently surveyed by the Association o f State and Territorial Solid Waste Management Officials (ASTSWMO) to obtain an e stimate of the number of additional personnel that states would need solely to issue permits for CCR disposal facilities under a Subtitle C regulation. Based on responses from 38 states, over 209 additional full-time equivalent (FTE) employees wou ld be needed. Even afterMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 9 discounting estimates from two states as being unus ually large and potential outliers, the estimate still exceeds 150, and does not repres ent all states. If the annual costs of one FTE for salary, fringe benefits, and overhead i s approximately $100,000, the additional personnel costs for Subtitle C permittin g nationwide could easily exceed $15 million. Additional expenditures would be needed f or personnel enforcing the permits. It is noted that the costs estimated to run Maryland’s “Coal Combustion Byproducts” regulatory program that was established in 2009 inc ludes 10 full-time staff positions including geologists, engineers, inspectors, and an attorney, with second year costs projected to exceed $900,000.

EPA maintains, without supporting documentation, t hat “... most states should be able to address any [funding] shortfalls through ha zardous waste generator or disposal fees.” (Page 35158, 6/21/2010 Federal Register). E PA has clearly underestimated the difficulty that this and other States will have in implementing new fees. Without adequate funding, States will be unable to undertak e the additional effort that this proposal would entail. Roughly 25% of the states d o not impose such fees (based on a survey conducted by the U.S. Army Corps of Engineer s – see section 13 of Report on Treatment, Storage & Disposal Facilities (TSDF) for Hazardous, Toxic, and Radioactive Waste, 2006 Update , available at http://www.environmental.usace.army.mil/TSDF/rp0toc .htm .) With current economic conditions and state budgets, obtaining new fees is extremely difficult. Even if adequate funds are available through fees, obtaining additio nal personnel is also extremely difficult in an era of furloughs and layoffs.

It is extremely important that this effort does not become another unfunded federal mandate with which states must deal while trying to meet existing commitments with respect to oversight of waste management programs.

B. Implementation and Oversight of Financial Assura nce Requirement. If the Subtitle C option is selected, there will be several additiona l facilities in Maryland – probably 4 to 6 in the near future - requiring operating and post-c losure care permits. Each of these permits will be subject to financial assurance requ irements for closure, post-closure, and liability. These are significant workload issues.

C. Implementation of Facility-Wide Corrective Actio n. Under the Subtitle C option, EPA would impose facility-wide corrective action requir ements on facilities required to obtain a RCRA permit for management of CCRs. Including bo th the generating stations and the active disposal sites in Maryland, this is esti mated to be in the range of 8-10 potential sites requiring corrective action. This would impose another complex demand on Maryland’s programs that are struggling to main tain the current level of effort. The proposal by EPA also fails to provide an adequate a nalysis of the practical difficulties associated with implementation of the facility-wide corrective action for the purposes of determining whether modification of the requirement is warranted, as authorized by §3004(x) of RCRA.

Initiation and oversight of corrective action acti vities at a facility are at least as resource intensive for the oversight agency as issu ing an operating or post-closure permit, and are probably more resource intensive, s ince corrective action is an on-going process requiring considerable oversight activity. Additional staffing needs at the state level are expected to be at least as great as for p ermitting. This will potentially affectMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 10 progress at sites currently going through the corre ctive action process, if states are unable to obtain resources to hire staff to impleme nt the newly imposed mandates.

D. Oversight and Enforcement of Ancillary Hazardou s Waste Management Requirements. It is critical for EPA to accurately acknowledge and quantify the state effort required to implement the additional hazard ous waste management requirements that would be imposed on CCR generators and transpo rters under the subtitle C option. The subtitle C option would result in a significant increase in the large quantity generator universe. It is not unreasonable to expect that EP A would designate this sector as a special priority for compliance evaluations, requir ing significant effort on the part of states and possibly diverting state resources from more pressing priorities. The enormous volumes of waste represented by CCRs will also strain the resources of states that actively review hazardous waste manifes t information, possibly requiring additional staff and/or equipment. In Maryland alo ne, the volume of waste that is involved is 1 to 2 million tons a year and increasi ng due to improvements in air quality controls. This will entail hundreds of thousands o f individual shipments of waste.

It is not clear that imposing these requirements o n CCR generators is addressing a demonstrable problem. The principal justification that EPA uses in advocating for subtitle C regulation involves damage cases associa ted with disposal. None of the cited incidents involves management of CCRs before the po int of disposal. In fact, EPA’s decision to maintain the exemption from being regul ated 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 depending on what the ultimate dispos ition of the material is to be.

Moreover, Maryland examined the issue of transporta tion in a recent rulemaking which imposed standards on the transportation of coal com bustion byproducts in Maryland (see COMAR 26.04.10.03, which became effective in O ctober 2010, which can be
viewed at http://www.dsd.state.md.us/comar/comarhtml/26/26.04 .10.03.htm . The problem encountered in transportation is not whethe r the material is transported to a legitimate disposal facility; instead, it is whethe r the material is blowing off the trucks, or being dragged out onto public roads from the loadin g or disposal sites, and liberated into the air by traffic or washed off by precipitation i nto streams. In order to address these concerns, Maryland now requires that:

“(a) Vehicles transporting coal combustion byproduc ts shall be fully enclosed, or fully enclosed on all sides and covered with a firmly sec ured canvas or other covering, so as to prevent any coal combustion byproducts from blowing off, falling off, or spilling out of the vehicle, or the coal combustion byproducts shall be handled and transported in sealed containers designed for transportation of powdery s olids;

(b) Before leaving a site where coal combustion byp roducts are loaded or off-loaded, vehicles transporting coal combustion byproducts shall be re ndered clean and free of excess material or debris that could blow off, fall off, or spill d uring transportation;

(c) Coal combustion byproducts being loaded into or off-loaded from a vehicle shall be sufficiently moistened or otherwise conditioned or contained to prevent particulate coal combustion byproducts from becoming airborne or cau sing fugitive air emissions;Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 11 (d) Following loading but prior to any transportati on of coal combustion byproducts, the transporter shall inspect each vehicle that contain s coal combustion byproducts to ensure that the requirements of §B(4) of this regulation are me t;

(e) A transporter of coal combustion byproducts sha ll maintain an inspection log for each
vehicle that shall be maintained in the vehicle at all times during transport of coal combustion byproducts, and for 30 days thereafter that shall c ertify compliance with the standards in §B(4) of this regulation; and

(f) An inspection log maintained by a transporter o f coal combustion byproducts shall consist of an entry for each inspection of a vehicle that h as been conducted by the transporter. An inspection entry shall consist of the following inf ormation:

(i) The date the inspection occurred;

(ii) The time of day the inspection occurred;

(iii) The name of the person conducting the inspect ion;

(iv) The condition of the vehicle and any correctiv e action required to ensure compliance with this subsection, for example, "truck cleaned a nd covered" for a vehicle that meets the requirements, or "cover OK, right side wheels hosed off again" for a vehicle that was properly covered but which required re-cleaning of wheels on the right side; and

(v) The signature of the individual certifying comp liance with §B(4) of this regulation.”

These conditions are considered adequate to insure that the materials are managed in an adequately protective manner, without the incredibl e additional burden that regulating the materials under the manifest rule would entail for both the haulers and the States.

V. Responses to EPA Requests for Additional Informa tion . In the following section MDE provides information responsive to specific req uests for additional information that
were summarized in Section XIV of the Preamble to t he regulatory action discussed herein, beginning on page 35221 of the Federal Register of June 21, 2010. Responses were only provided where MDE had responsive information, or a n informed opinion; for example, we do not offer information concerning wet ash impound ments since there are no facilities with wet ash impoundments in Maryland. EPA’s language i s provided in Courier font as it appeared in the Federal Register where a response i s being provided. MDE’s responses are inset, and in Arial font.

A. Management of CCRs:

1. Whether regulatory approaches should be established individually for the four Bevill CCR wastes (fly as h, bottom ash, boiler slag, and FGD sludges) when destined for dis posal.

Maryland notes that these materials have widely dif ferent uses. Fly ash can be a valuable additive to cement, bottom ash may substit ute successfully for aggregates and as a winter traction aid in some uses, boiler s lag is used as a sand blasting agent, and FGD sludge has been used successfully as a source of gypsum inMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 12 drywall. Also, they have somewhat different engine ering properties. Therefore, it is
recommended that EPA at least examine the matter in greater detail. Maryland would be interested in reviewing a federal proposal defining what constitutes legitimate uses, and what constitutes disposal.

2. The extent to which the information currently available to EPA reflects current industry practice s at both older

and new units.

The ash generation figures provided in the docket a ppear to be grossly exaggerated compared to the figures provided to Mar yland for Maryland generators. The reports for the Maryland utilities as well as o ther generators in the State for calendar 2008 and 2009 can be viewed on the Departm ent’s website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts/Pa ges/Programs/LandPrograms/Solid_Waste/ccbs/index.as px

.

3. The regulatory approaches proposed in the notice an d the alternative approaches EPA is considering as di scussed in Section XIII of the preamble.

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 2 58, where States must integrate the federal standards into their program and seek p rogram 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 hydrogeologist s and engineers from the solid and industrial waste permitting units to proposed C CR disposal facilities, to ensure that these units are safely designed and operated. This is much more desirable than relying on third-party certifications by consultant s 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 sit e, as State government scientists
whom work in the area full-time.

As a secondary choice, a scenario similar to EPA’s previously proposed “kiln dust” regulation, in which materials that are not handled properly are hazardous waste but properly managed materials are regulated under Subt itle D, would also be acceptable if properly implemented. It is noted th at that scenario would also meet EPA’s needs with respect to the ability to directly enforce the regulations where it deemed it appropriate for the protection of the env ironment and the public health. The Department does not support the “D Prime” alter native, or any of the others
discussed in the Preamble.

4. Information and data on CCRs that are generated by nonutility industries, such as volumes generated, char acteristics of the CCRs, and whether they are co-managed with othe r wastes generated by the non-utility industry.

The Department collects volume and other informatio n from the other non-utility CCR generators in Maryland. This information is pr ovided on our website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproductsMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 13 /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.

B. Risk Assessment

Are there any additional data that are representati ve of CCR constituents in surface impoundment or landfill leachate (from literature, state files, industry or other sources) that EPA has not identified and should be used in evaluating the risks presented by the land disposal of CCRs?

The Department collects volume and in some cases an alytical information from the CCR generators in Maryland. This information for c alendar 2008 and 2009 is provided on our website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index .aspx

.

C. Liners

1. Whether, in addition to the flexibility provided by section 3004(o)(2), regulations should also provide for alternative liner designs based on, for example, a specific per formance standard, such as the performance standard in 40 CF R 258.40(a)(1), or a site specific risk assessment, or a standard t hat the alternative liner, such as a clay liner, was at lea st as effective as the composite liner.

Maryland would support flexibility to allow alterna tive liner designs ONLY if the State landfill regulatory agency reviews and approves the design, as is the case in the regulations governing municipal waste landfills at 40 CFR 258.

2. Whether clay liners designed to meet a 1 x 10 -7 cm/sec hydraulic conductivity might perform differe ntly in practice than modeled in the risk assessment, including spec ific data on the hydraulic conductivity of clay liners associated wi th CCR disposal

units.

The Department notes that to achieve 1x10 -7 permeability, a soil liner layer must have a significant content of clay. Sediments with a high clay content may behave as a thixotropic semifluid when fully hydrated and subjected to stress, depending on the mineralogy of the clays involved. Montmorillon ites such as bentonite, among other clay minerals, can exhibit this behavior. Wh en saturated and under a heavy load such as a large landfill or impoundment, a cla y liner can exhibit pumping or increased likelihood of structural failure. Theref ore, the Department does not recommend “clay only” liners, and requires that a v ertical buffer of at least 3’ be maintained between the low-permeability soil layers in a composite liner and the highest anticipated occurrence of groundwater in mo st of the hydrogeologic regimes
that occur in the State.

D. Beneficial UseMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 14 1. The growth and maturation of state beneficial use p rograms and the growing recognition that the beneficial use of CCRs is a critical component in strategies to reduce GHG emis sions taking into account the potentially changing composition o f CCRs as a result of improved air pollution controls and the n ew science on metals leaching.

The use of CCRs in concrete and cement products red uces the amount of raw materials consumed to make these products. All of the CCRs produced by two Maryland cement producers that use coal as fuel are reused in products, displacing
limestone and other materials that would have other wise have to be mined, and therefore decreasing the use of fuel to mine, proce ss, and transport the displaced materials. In addition to CCRs the producers gener ate, they import and utilize CCRs produced by utility industries; for example, one ce ment producer reported importing over 220,000 tons of CCRs from other generators. A gain, this displaced natural materials. The Department has proposed regulations for the beneficial use of CCRs that support the use of CCRs in such products.

2. Information and data on the extent to which states request and evaluate CCR characterization data prior to the beneficial use of unencapsulated CCRs.

At this time MDE evaluates CCR uses when it is requ ested or becomes aware of a proposed use. However, on February 26, 2010, MDE p roposed regulations for the beneficial use of CCRs that would require extensive characterization of CCRs prior to several proposed uses of unencapsulated material s, including the use of bottom ash as an aggregate beneath paved roads and pipes, and the use of bottom ash as a traction aid in winter. The regulations would re quire TCLP data initially, but would allow the Department to accept the results of other leaching tests, as we anticipate that the SPLP or other tests requiring longer conta ct time may be better models for the behavior of CCRs in the environment. As propos ed the regulation would require comparison of the leach test results to MCLs or in some cases surface water criteria where they are lower; only CCR material that had ex traction results lower than the standards, or were treated so they leached less tha n the standards, would be allowed for unencapsulated uses.

3. The appropriate means of characterizing beneficial uses that are both protective of human health and the en vironment and provide benefits. EPA is also requesting informatio n and data demonstrating where the federal and state programs could improve on being environmentally protective and, where states have, or are developing, increasingly effective beneficial use p rograms.

See MDE’s response to V.D.2 above concerning MDE’s proposed CCR beneficial use regulations. The proposed regulations are curr ently offline for a brief time but will shortly be available on MDE’s website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index .aspx

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4. Whether certain uses of CCRs (e.g., uses involvingMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 15 unencapsulated uses of CCRs) warrant tighter contro l and why such tighter control is necessary.

The Department believes, based on the review of dat a available to the Department, including information provided by EPA in the Notice of Data Availability concerning CCRs and numerous other sources, that unencapsulate d uses of CCRs generally require tighter control s than applications where t he CCBs are chemically and/or physically bound.

5. If EPA determines that regulations are needed for t he beneficial use of CCRs, should EPA consider removin g the Bevill exemption for such uses and regulate these uses und er RCRA subtitle C, develop regulations under RCRA subtitle D or som e other statutory authority, such as under the Toxic Substa nces Control

Act?

The Department considers CCRs to be a largely non-h azardous industrial waste, but believes that there is a need for regulation of act ivities purported to be “beneficial uses” of CCRs. The Department believes that RCRA S ubtitle D (and corresponding state authority) is the appropriate basis for such regulations

6. Whether it is necessary to define beneficial use be tter or develop detailed guidance on the beneficial use of CCRs to ensure protection of human health and the environment, inc luding whether certain unencapsulated beneficial uses should be pr ohibited.

The Department has elected to propose management st andards for beneficial uses only for certain unencapsulated uses for certain CC Rs, and has proposed to prohibit others; however, this regulation is not yet finaliz ed. The regulation involved tiered public notification and comment opportunities based on the proposed volume of CCBs to be used in any proposed use. See MDE’s res ponse to V.D.2 above concerning MDE’s proposed CCR beneficial use regula tions. The proposed regulations are currently offline for a brief time but will be available on or before December 1, 2010 on MDE’s website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index .aspx

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7. Whether the Agency should promulgate standards allo wing uses on the land, on a site-specific basis, based o n site specific risk assessments, taking into consideration the com position of CCRs, their leaching potential under the range of c onditions under which the CCRs would be managed, and the context in which CCRs would be applied, such as location, volume, rate of application, and proximity to water.

Based on the information available to it, the Depar tment has elected to propose management standards for beneficial uses only for c ertain unencapsulated uses for certain CCRs, and has proposed to prohibit others; however,the proposal would allow potential users to request individual review of proposals that were not specifically provided for in the regulation. This regulation is not yet finalized. See MDE’s response to V.D.2 above concerning MDE’s prop osed CCR beneficial useMaryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 16 regulations. The proposed regulations are currentl y offline for a brief time but will be available on or before December 1, 2010 on MDE’s we bsite at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index .aspx

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8. If materials characterization is required, what typ e of characterization is most appropriate? If the CCRs e xceed the toxicity characteristic at pH levels different from the TCLP, should they be excluded from beneficial use? When a re totals levels

relevant?

The Department’s proposed regulations for the benef icial use of CCRs would require extensive characterization of CCRs prior to several proposed uses of unencapsulated materials, including the use of bott om ash as an aggregate beneath paved roads and pipes, and the use of bottom ash as a traction aid in winter. The regulations would require TCLP data initially, but would allow the Department to accept the results of other leaching tests, as we a nticipate that the SPLP or other tests requiring longer contact time may be better m odels for the behavior of CCRs in the environment. As proposed the regulation would require comparison of the leach
test results to MCLs or in some cases surface water criteria where they are lower; only CCR material that had extraction results lower than the standards, or were treated so they leached less than the standards, wo uld be allowed for unencapsulated uses. We believe that materials tha t would fail the TCLP at other pHs probably would not pass this standard. We note that a number of researchers are working on the evaluation of the SPLP and other leachability tests, and anticipate that tests that are more appropriate tha n the TCLP for applications involving placing CCRs in the open environment will be available in the near future. This is an area where EPA could provide valuable le adership.

9. Whether EPA should fully develop a leaching assessm ent tool in combination with the Draft SW-846 leaching test methods described in Section I. F. 2 and other tools (e.g., USEPA's Industrial Waste Management Evaluation Model (IWEM) ) to aid prospective beneficial users in calculating potenti al release rates over a specified period of time for a range of mana gement
scenarios.

As noted in V.D. 7 and 8 above, MDE believes this w ould be helpful.

10. Historically, EPA has proposed or imposed condition s on other types of hazardous wastes used in a manner co nstituting disposal (e.g., maximum application rates and risk- based

concentration limits for cement kiln dust used as a liming agent in agricultural applications (see 64 FR 45639; August 20, 1999);

maximum allowable total concentrations for non-nutr itive and toxic metals in zinc fertilizers produced from recycled h azardous secondary materials (see 67 FR 48393; July 24, 2002 ). Should EPA establish standards, such as maximum/minimum thresh olds, or rely on implementing states to impose CCR site-specific lim its based on

front-end characterization that ensures individual beneficial uses remain protective?Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 17 The Department is interested in reviewing informati on that EPA may have on this topic.

E. Stigma

1. If EPA were to regulate CCRs as a ``special waste'' under subtitle C of RCRA, and stigma turns out to be an i ssue, suggestions on methods by which the Agency could re duce any stigmatic impact that might indirectly arise. We ar e seeking information on actual instances where ``stigma'' ha s adversely

affected the beneficial use of CCRs and the causes of these adverse

effects.

The Department believes that stigma regarding CCRs is already an issue. In response to EPA’s discussion of the issue, in which it cited that some other potentially hazardous materials such as waste oil r ecycling are not subject to public rejection due to perceived hazardous qualities of t he material, MDE notes that CCRs are not familiar to most citizens – they are an unk nown industrial waste that is often

described as a “toxic” waste, whereas waste oil and household hazardous wastes derive from familiar products.

2. The issue of ``stigma'' and its impact on beneficia l uses of CCRs, including more specifics on the potential for procedural difficulties for state programs, and measures that EPA might adopt to try to mitigate these effects.

Please see the answer to the previous question. In addition, one certain outcome of designation as a hazardous waste is a decrease in r ecycling and an increase in disposal. The impacts of increased hazardous waste disposal have been discussed previously.

EPA can help mitigate the stigma by appropriately c haracterizing the material under existing standards. A federal program and the nece ssary research to designate and expand safe reuse opportunities would also support recycling.

F. The Co-Proposed Regulations

1. EPA broadly solicits comment on the approach of rel ying on certifications by independent registered profession al hydrologists or engineers of the adequacy of actions taken at co al-fired utilities to design and operate safe waste manageme nt systems.

Throughout the sections of the proposed regulation governing groundwater monitoring and remediation, 40 CFR 257.90 to .98, h eavy reliance on third-party contractors to make important determinations is not ed. While a similar approach was taken in 40 CFR 258, it was done with the knowl edge that most, if not all States, would avail themselves of the opportunity to seek E PA program approval to allow them to provide oversight, which is an intrinsic pa rt of the 40 CFR 258 regulations, and which in fact occurred. Although the Departmen t believes that most engineers and geologists are reputable and reliable, this app roach has the potential for abuse,Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 18 and does not allow for the involvement of experienc ed State professional staff to correct misinterpretations without federal litigati on. It is noted that in the Preamble, EPA itself acknowledges this as a concern. The app roach taken in 40 CFR 258, which provides for the state to act in an oversight role, is considerably more reliable and appropriate

. It is recommended that the proposal incorporate req uirements
similar to 40 CFR 258.

2. Whether the subtitle D option, if promulgated, shou ld allow facilities to use alternative designs for new disposal units,

so long as the owner or operator of a unit could obtai n certification from an independent registered professional enginee r or hydrologist that the alternative design would ensure that the a ppropriate concentration values for a set of constituents typi cal of CCRs will not be exceeded in the uppermost aquifer at the rel evant point of compliance (i.e., 150 meters from the unit boundary down gradient from the unit, or the property boundary if the poin t of compliance is beyond the property boundary).

See comment V.F.1 above. While the use of consulta nts to prepare plans, demonstrations and certifications is necessary and desirable, sole reliance on the judgment of one party is not. States should be all owed to provide detailed technical review by hydrogeologists and engineers of their so lid and industrial waste permitting units of proposed and active CCR disposa l facilities, to insure that these units are safely designed and operated. This is mu ch more desirable than relying on third-party certifications by consultants whom may not as fully cognizant of the geotechnical conditions that exist in any given are a, or be as familiar with the historical operating conditions at a particular sit e, as State government scientists
whom work in the area full-time.

3. Whether the subtitle ``D prime'' option is protecti ve of

human health and the environment.

The Department notes that the under the ‘‘D prime’’ option, “...existing surface impoundments would not have to close or install com posite liners but could continue to operate for their useful life.” As the Departme nt 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 saf e closure or retrofit within a reasonable time. However, the Department encourage s EPA to adopt a proposal similar to the 40 CFR 258 rule, not “D Prime” or ei ther of the proposed rules.

G. Financial Assurance.

1. EPA broadly solicits comments on whether financial assurance should be a key program element under a s ubtitle D approach, if the decision is made to promulgate reg ulations under

RCRA subtitle D.

The Department believes that if a Subtitle D approa ch is adopted, financial
assurance similar to those in 40 CFR 258 should be included in the regulation.Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 19 H. State Programs

1. Detailed information on current and past individual state regulatory and non-regulatory approaches taken to e nsure the safe management of CCRs, not only under State waste auth orities, but under other authorities as well, including the impl ementation of those approaches.

Maryland has undertaken an extensive program to ado pt comprehensive regulations governing CCR disposal, transportation, and use in mine reclamation. New regulations were promulgated in December 2008, and additions and amendments have refined and expanded the scope in several acti ons since that time. The key piece of the regulatory framework is COMAR 26.04.10 , Management of Coal Combustion Byproducts, which can be viewed in its c urrent form at http://www.dsd.state.md.us/comar/SubtitleSearch.asp x?search=26.04.10.* . It also references other pertinent regulations that govern industrial waste landfills including CCR landfills, and mine reclamation activities incl uding placement in coal and noncoal mines. More information concerning the adopti on of these regulations, including all of the comments received and MDE’s re sponses to those comments are
available on our website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index .aspx

.

In addition, in February 2010 MDE proposed new regu lations governing the beneficial use of CCRs. The proposed regulations w ill be available on the Department’s CCB website at http://www.mde.state.md.us/programs/Land/SolidWaste /CoalCombustionByproducts /Pages/Programs/LandPrograms/Solid_Waste/ccbs/index .aspx on or before December 1, 2010, ,together with the comments recei ved. MDE is currently reviewing those comments. They were published in t he Maryland Register edition of February 26, 2010, which is available through the M aryland Division of State
Documents. See http://www.dsd.state.md.us/MDRegister/mdregister.as px#3705 for
more information The Department would be willing to provide addition al information concerning the composition and activities of the program as reques ted.

2. The potential of federal regulations to cause disru ption to States' implementation of CCR regulatory program s under their own authorities, including more specifics on the po tential for procedural difficulties for State programs, and mea sures that EPA might adopt to try to mitigate these effects.

As noted in the response to V.H.1 above, the Depart ment has recently undertaken an extensive program to regulate CCRs. Implementat ion of the program occurs through the Land Management Administration’s Mining and Solid Waste Programs, the Air and Radiation Management and Water Manageme nt Administrations, as well as the Office of the Attorney General. In addition to undertaking permitting, monitoring, inspection, and closure plan and field evaluations, the Department is currently engaged in a number of enforcement action s involving CCR sites.Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 20 As already discussed, the CFR257 option would be ve ry disruptive and less protective than the current State regulations. The Subtitle C option, in addition to significant resource and stigma issues already disc ussed, would require revision to most of Maryland’s recently enacted CCR requirement s.

The approach like that used for 40 CFR 239, to impl ement 40 CFR 258 would present the fewest procedural difficulties.

I. Damage Cases

EPRI's report and additional data regarding the pro ven damage cases identified by EPA, especially the degr ee to which

there was off-site contamination.

The Department affirms that the BBSS site in Anne A rundel County, Maryland, which was cited by EPA as a site with confirmed impact du e to CCRs, is in fact such a case. However, commenters have used this example t o support the position that the States have not effectively addressed coal combusti on residuals, and that the only alternative is to regulate these materials as hazar dous wastes.

The Department points out that EPA’s discussion of this case in the Preamble makes reference to a Consent Order that included a significant penalty as well as remedial, closure, and post-closure uses that requi re cleanup and closure that is protective pf public health and the environment.

While this site does show that Maryland’s previous regulatory requirements needed to be improved, it did not show that that CCR neede d to be regulated as a hazardous waste. At the time of that enforcement a ction, Maryland had already initiated a process to promulgate new regulations f or the disposal, storage, transportation, and use in mine reclamation that in clude permitting, design, monitoring and closure requirements that are very s imilar to and in some areas more protective than the proposed federal regulations. This approach, as well as the success of the 40 CFR 258 regulations governing mun icipal waste landfills, demonstrates that designation as a hazardous waste is not the only mechanism available to ensure that public health and the envi ronment are protected from the potential adverse effects of coal combustion residu als.Maryland Department of the Environment – Comments f or EPA Docket ID No. EPA-HQ-RCRA-2009-0640

Page 21 Appendix: Recommended Routine Groundwater Monitorin g Parameters for Both C and D Proposals.

Elements and Indicator Parameters PQL (ppm except as noted)
Total Antimony 0.0020

Total Arsenic 0.0040

Total Barium 0.0100
Total Beryllium 0.0020

Total Boron 0.013

Total Cadmium 0.0040

Total Chromium 0.0100

Total Calcium 0.08

Total Cobalt 0.0100
Total Copper 0.0100

Total Iron 0.0050

Total Lead 0.0020

Total Lithium 0.016

Total Nickel 0.0110
Total Magnesium 0.004
Total Manganese 0.0100
Total Mercury 0.0002
Total Molybdenum 0.016

Total Potassium 0.39

Total Selenium 0.0120

Total Silver 0.0100

Total Sodium 0.2

Total Thallium 0.0020

Total Vanadium 0.0100

Total Zinc 0.0100
pH 0.1 (SU)
Alkalinity 1

Hardness 0.5

Chloride 0.39
Specific conductance 1

Nitrate 0.06
Chemical oxygen demand 1
Turbidity 0.11 (NTU)

Ammonia 1

Total Sulfate 0.38

Total dissolved solids 10