Comments by the Maryland Department of the Environment Concerning the 

United States Environmental Protection Agency’s Proposals 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 Maryland Department 

of the Environment (“MDE”, the “Department”) to the United States Environmental 

Protection Agency (USEPA) concerning the proposed federal 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 sections to assist in its review: 

- Section I: Introduction 

- Section II: General Comments 

- Section III: Comments Relating to “RCRA D” Proposal 

- Section IV: Comments Relating to “RCRA C” Proposal 

- Section V: Responses to EPA Requests for Additional Information 

- Appendix: Recommended Routine Groundwater Monitoring Parameters for Both 

RCRA C and D Proposals. 

Questions concerning the comments provided herein may 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 to 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 its position based on Maryland’s 

experience with groundwater contamination from CCR disposal sites that there should 

be a federal threshold for regulation, and that regulation should not be left to individual 

states. Beginning in 2007, Maryland has proposed and implemented new rules for CCR 

generators including reporting, new rules for disposal, obtained and implemented 

legislative authorization for a per ton fee to operate the programs, and is now 

developing rules to govern safe beneficial re-use of CCRs. Maryland also generally 

agrees with the technical requirements of the proposed approaches proposed. The 

Department, however, does not fully support either of the proposed regulatory options 

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 Subtitle 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 following: 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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1. Reviewing the analytical data for CCRs available in the docket and elsewhere, 

including data that is submitted annually to this Department 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 hazardous 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 hazardous waste. 

EPA presents summary data on analyses of CCRs in Table 2 on page 35138 of the 

Federal Register notice of the proposed rule. Examination of the source 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 characteristic 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 samples of boiler slag were non-detect 

for cadmium, the maximum observed TCLP concentration was 1.02 MG/L 

(regulatory limit 1.0), and the mean TCLP concentration was reported as 0.0437 

MG/L. Twenty of thirty-three samples of boiler slag were non-detect for lead, the 

maximum observed TCLP concentration was 7.6 MG/L (regulatory 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 exceedance 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 CCRs do not exhibit the toxicity 

characteristic, and boiler slag only does so infrequently, and at levels minimally 

above the regulatory limit, with the overall mean concentration well below the limit. 

This does not provide a justifiable basis for designating 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 the 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 approach 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, and that pound-for-pound present a 

higher level of risk, is a potentially significant waste of resources. 

It also jeopardizes a significant opportunity to safely 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 provides 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 would allow use of a liner that is 

equivalent to a “RCRA D” liner rather than the double liner required for true 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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hazardous wastes. The other additional burdens of regulation under RCRA C are 

not warranted. 

4. Beyond the major policy implication of developing 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 facilities located out-of-state for 

the disposal of RCRA C wastes. Under the RCRA Subtitle C option, CCRs, of 

course, must be disposed of in RCRA C facilities. Generators of hazardous 

materials will be competing with the electric utilities for disposal capacity. We are 

concerned that this competition may have an unintended consequence of driving the 

disposal costs up beyond the reach of smaller businesses 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 enforcing our own statutes against 

open dumping. Far more enforcement actions have been taken against small 

operators for open dumping and operating unpermitted landfills than the larger waste 

disposal companies, which generally can pay for legitimate disposal. It is the smaller 

companies or individual haulers that may get into cash-flow difficulties, and find that 

the legitimate disposal sites refuse them access until they pay their bills. Some 

operators have then chosen to utilize illegal dumpsites to avoid the cost of disposal 

at legitimate sites, just to keep their business running, or to give themselves a 

financial advantage over their competition. 

For example, between the period July 1, 2009 and June 30, 2010, of the 19 

complaints of solid waste dumping investigated by MDE where the responsible party 

has been identified, 17 were individuals, 2 were small companies, and none were 

large, established waste hauling companies. It is anticipated that a significant 

increase in the fees for disposing of hazardous waste would lead to similar 

temptations among the smaller generators and small haulers of industrial waste, to 

either find ways to avoid paying legitimate disposal costs by improperly managing 

their own wastes, or to hire the “low bid” hauler who can undercut their competition 

because they avoid legitimate disposal costs through illegal dumping. We are 

confident that investigation of EPA’s records of illegal hazardous waste disposal 

cases would reveal the same pattern. 

5. With respect to the development of the risk assessment provided in the Preamble, 

it is noted that no attenuation factors were included when evaluating the leaching 

test results (see notes to Tables 4 and 5, page 35141 and 2 of the 6/21/10 Federal 

Register). It is noted that when EPA originally established first the EP Toxicity Test 

and then the Toxicity Characteristic Leaching Procedure (TCLP) as the standards for 

determining whether a material is hazardous by virtue 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 Department 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 the 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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public, it is not appropriate for a determination of whether a material should be 

regulated under RCRA C. 

C. Throughout the sections of the proposed regulation governing groundwater monitoring 

and remediation, 40 CFR 257.90 to .98, heavy reliance on third-party contractors to 

make important determinations is noted. While a similar approach was taken in 40 CFR 

258, it was done with the knowledge that most if not all States would avail themselves of 

the opportunity to seek EPA program approval to allow 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 engineers and geologists are reputable and 

reliable, it is noted that this certainly has the potential for abuse, and does not allow for 

the involvement of experienced State geologists short 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 is 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 been 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 routinely 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 like that used for municipal solid wastes 

under 40 CFR 258, where States must integrate the federal standards into the State 

program and seek program approval from EPA under 40 CFR 239. This eliminates 

duplicative requirements, and allows the States to provide detailed technical review by 

hydrogeologists and engineers of their solid and industrial waste permitting units to 

proposed CCR disposal facilities, to insure that these units are safely designed and 

operated. This is much more desirable than relying on third-party certifications by 

consultants, as would be the case under the proposed RCRA D option, whom may not 

be as fully cognizant of the geotechnical conditions that exist in any given area, or be as 

familiar with the historical operating conditions at a particular site. It is also more 

desirable than the excessive requirements of the RCRA C approach, which, particularly 

with respect to the manifesting requirement, do not add any additional level of safety at 

all while adding a tremendous burden to both the haulers and the States. 

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 Subtitle D, would also be acceptable if 

properly implemented. It is noted that 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 environment and the public health. 

F. Also, EPA’s choice not to allow the States to evaluate and approve enhancements to 

important elements such as the liner design and groundwater monitoring system, as is 

the case under the 40 CFR 258 regulations, makes this a risky proposal. The inability of 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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the States to specify more stringent monitoring requirements under the federal rule, 

such as more monitoring wells than just one upgradient and three down, has two 

negative effects: First, it weakens state enforcement 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, requires states to have duplicative rules to 

provide them with that authority, making it difficult 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 believe that EPA could change the rule 

to allow groundwater monitoring plans approved by the States as long as they are at 

least as stringent as required under the proposed rule. 

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 EPA consider using the “as stringent 

as federal law” standard and ensure a threshold level of protection for disposal in that 

manner. In the interim, establishing national standards and working with the States, 

which already have permitting and enforcement capabilities, would be the most effective 

means of implementing these standards in a practical way in the least amount of time. 

H. With respect to EPA’s argument that “...RCRA subtitle D requirements would regulate 

only the disposal of solid waste, and EPA does not have the authority to establish 

requirements governing the transportation, storage, or treatment of such wastes prior to 

disposal” (Preamble, page 35160 of the Federal Register), the Department notes that 

the principal problems that EPA has described in the Damage Cases supporting this 

rule making were principally involved with disposal of CCRs, not transportation, storage, 

or treatment. The Department affirms that the BBSS site in Anne Arundel County, 

Maryland, which was cited by EPA as a site where confirmed impact due to CCRs 

occurred, is in fact such a case. However, some other commentors have used this and 

other damage cases to support the position that the States have not effectively 

addressed coal combustion residuals, and that therefore the only alternative is to 

regulate these materials as hazardous wastes. EPA’s discussion of this case in the 

Preamble makes reference to a Consent Order that included a very significant penalty 

as well as remedial, closure, and 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, storage, transportation, and use in mine 

reclamation that include permitting, design, monitoring and closure requirements that 

are very similar to and in some areas more protective than the proposed federal 

regulations. This, as well as the success of the 40 CFR 258 regulations governing 

municipal waste landfills, makes the case that designation as a hazardous waste is not 

the only way to insure that the public is protected from the potential adverse effects of 

coal combustion residuals. 

I. Maryland does not have experience with wet-ash impoundments, as there are currently 

none in Maryland. However, as there are impoundments adjacent to Maryland waters, 

Maryland supports EPA’s effort to insure the safety of these structures. 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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III. Comments Relating to “RCRA D” proposal. In addition to the “RCRA D” issues 

discussed in Section II, General Comments, the following 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 protective. It is recommended that: 

1. The minimum vertical separation be at least 3 feet 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 observation of the water 

table at the site for a specified time such as at least a year, geological 

observations of the formation, and observation of water level fluctuation in 

wells screened in the same formation and in a similar hydrologic setting, 

where available. 

B. Proposed Regulation 40 CFR 257.8: This regulation establishes a limit of 35 

mg/m3 for particulate releases from CCR disposal sites. However, it is noted that 

a particulate standard from an area site like a landfill would be very hard to 

accurately assess, for all parties – the operator, the State, and any private 

citizen. Air monitoring devices are subject to local air movements, making even 

a negative result problematic. Promulgating a standard that cannot be readily 

proven or disproven is useless for the protection of public health, while requiring 

enormous efforts and resources on the part of the operator and any regulatory 

agency to attempt to assess. It is recommended that 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 stringent requirements for dust 

prevention and management, such as immediate placement, compaction, 

conditioning of the material with water and other dust control agents, vegetative 

stabilization of inactive areas, and traffic control 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 third party geologist or 

engineer, a provision be included for approval of a monitoring plan by a State 

regulatory authority. In those states where facilities would be subject to both 

State and federal regulation, such a provision would allow a facility to attain 

satisfaction of the federal rule by obtaining local approval. 

The Department is concerned that the inability of the 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 enforcement 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, it incentivizes 

states to have State rules to provide them with that authority, making it difficult 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 believe that EPA could change the rule to allow 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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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 release from the monitored 

facility. However, the regulation that specifies when this must occur is very 

vague, and potentially unenforceable. Specifically, 40 CFR 257.93(i)(2) 

specifies: “Within a reasonable period of time after completing sampling and 

analysis, the owner or operator of the CCR landfill or surface impoundment must 

determine whether there has been a statistically significant increase over 

background at each monitoring well.” It is recommended that a determinable and 

enforceable time requirement e.g., 90 days, be inserted 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 complete if the monitoring well 

analyses produce results below the established groundwater protection 

standards for at least three years. Specifically, the regulations provides: “(2) 

Compliance with the groundwater protection standards established under §§ 

257.95 (h) or (h) has been achieved by demonstrating that concentrations of 

Appendix IV constituents have not exceeded the groundwater 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 note 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 being exceeded after the 

system was deactivated. An example in which EPA had some involvement is the 

Scarboro Landfill in Harford County, Maryland, at which an active groundwater 

extraction and treatment system was installed under a Consent Order with the 

Department, which subsequently met standards and was allowed to be turned 

off. Some years later, MCLs were again exceeded, and the extraction system 

was reactivated. For these reasons, it is recommended 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 specific minimum designs that 

are at least as good if not superior to the minimum standards in the proposed 

regulation. Providing a mechanism to acknowledge and 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 landfills 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 for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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G. Proposed Appendix III to 40 CFR 257: This Appendix specifies the parameters to 

be used for detection monitoring. Maryland considers the parameter list to be 

inadequate to determine whether a release from a CCR facility has occurred, and 

recommends an expanded list, which is included as the Appendix to these 

comments. This comment is applicable to both “C” and “D” proposals. 

IV. Comments Relating to “RCRA C“ Proposal. The Department has serious 

concerns about the likely impact on Maryland and other 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 required to close by specified 

deadlines, 

• provide oversight of closure of disposal units, 

• implement and provide oversight of financial assurance requirements for permitted 

facilities, 

• implement facility-wide corrective action requirements established by §3004(u) of 

RCRA, and 

• oversee and enforce ancillary hazardous waste management requirements 

applicable to generators of hazardous waste at facilities 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 generating 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 stated that, additionally, a small 

number of power plants dispose of their CCRs off-site (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 effort to be implemented and 

overseen by the States. The impact on individual states will be even more severe than 

these numbers imply, since the 495 power plants affected by the rule are not distributed 

evenly across the country. States with a disproportionate 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 generating 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 of State and Territorial Solid 

Waste Management Officials (ASTSWMO) to obtain an estimate 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 would be needed. Even after 
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discounting estimates from two states as being unusually large and potential outliers, 

the estimate still exceeds 150, and does not represent all states. If the annual costs of 

one FTE for salary, fringe benefits, and overhead is approximately $100,000, the 

additional personnel costs for Subtitle C permitting nationwide could easily exceed $15 

million. Additional expenditures would be needed for 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 includes 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, that “... most states should be 

able to address any [funding] shortfalls through hazardous waste generator or disposal 

fees.” (Page 35158, 6/21/2010 Federal Register). EPA has clearly underestimated the 

difficulty that this and other States will have in implementing new fees. Without 

adequate funding, States will be unable to undertake the additional effort that this 

proposal would entail. Roughly 25% of the states do not impose such fees (based on a 

survey conducted by the U.S. Army Corps of Engineers – 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 additional 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 Assurance Requirement. If the Subtitle C 

option is selected, there will be several additional facilities in Maryland – probably 4 to 6 

in the near future - requiring operating and post-closure care permits. Each of these 

permits will be subject to financial assurance requirements for closure, post-closure, and 

liability. These are significant workload issues. 

C. Implementation of Facility-Wide Corrective Action. Under the Subtitle C option, EPA 

would impose facility-wide corrective action requirements on facilities required to obtain 

a RCRA permit for management of CCRs. Including both the generating stations and 

the active disposal sites in Maryland, this is estimated 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 maintain the current level of effort. The 

proposal by EPA also fails to provide an adequate analysis 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 activities at a facility are at least as 

resource intensive for the oversight agency as issuing an operating or post-closure 

permit, and are probably more resource intensive, since 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 permitting. This will potentially affect 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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progress at sites currently going through the corrective action process, if states are 

unable to obtain resources to hire staff to implement the newly imposed mandates. 

 D. Oversight and Enforcement of Ancillary Hazardous Waste Management 

Requirements. It is critical for EPA to accurately acknowledge and quantify the state 

effort required to implement the additional hazardous waste management requirements 

that would be imposed on CCR generators and transporters 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 EPA would designate this sector as a 

special priority for compliance evaluations, requiring 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 manifest information, possibly requiring 

additional staff and/or equipment. In Maryland alone, the volume of waste that is 

involved is 1 to 2 million tons a year and increasing due to improvements in air quality 

controls. This will entail hundreds of thousands of individual shipments of waste. 

 It is not clear that imposing these requirements on CCR generators is addressing a 

demonstrable problem. The principal justification that EPA uses in advocating for 

subtitle C regulation involves damage cases associated with disposal. None of the cited 

incidents involves management of CCRs before the point of disposal. In fact, EPA’s 

decision to maintain the exemption from being regulated as hazardous waste for CCRs 

that are beneficially used leads to a contradictory state of affairs where the exact same 

material would face radically different management standards while on-site at the point 

of generation depending on what the ultimate disposition of the material is to be. 

Moreover, Maryland examined the issue of transportation in a recent rulemaking which 

imposed standards on the transportation of coal combustion byproducts in Maryland 

(see COMAR 26.04.10.03, which became effective in October 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 whether the material is transported to a 

legitimate disposal facility; instead, it is whether the material is blowing off the trucks, or 

being dragged out onto public roads from the loading or disposal sites, and liberated into 

the air by traffic or washed off by precipitation into streams. In order to address these 

concerns, Maryland now requires that: 

“(a) Vehicles transporting coal combustion byproducts shall be fully enclosed, or fully 

enclosed on all sides and covered with a firmly secured 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 solids; 

(b) Before leaving a site where coal combustion byproducts are loaded or off-loaded, vehicles 

transporting coal combustion byproducts shall be rendered clean and free of excess material 

or debris that could blow off, fall off, or spill during 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 causing fugitive air emissions; 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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(d) Following loading but prior to any transportation of coal combustion byproducts, the 

transporter shall inspect each vehicle that contains coal combustion byproducts to ensure that 

the requirements of §B(4) of this regulation are met; 

(e) A transporter of coal combustion byproducts shall 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 certify compliance with the standards in 

§B(4) of this regulation; and 

(f) An inspection log maintained by a transporter of coal combustion byproducts shall consist 

of an entry for each inspection of a vehicle that has been conducted by the transporter. An 

inspection entry shall consist of the following information: 

(i) The date the inspection occurred; 

(ii) The time of day the inspection occurred; 

(iii) The name of the person conducting the inspection; 

(iv) The condition of the vehicle and any corrective action required to ensure compliance 

with this subsection, for example, "truck cleaned and 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 compliance 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 incredible 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 Information. In the following section 

MDE provides information responsive to specific requests for additional information that 

were summarized in Section XIV of the Preamble to the 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 an informed opinion; for example, we 

do not offer information concerning wet ash impoundments since there are no facilities with 

wet ash impoundments in Maryland. EPA’s language is provided in Courier font as it 

appeared in the Federal Register where a response is 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 ash, bottom ash, 

boiler slag, and FGD sludges) when destined for disposal. 

Maryland notes that these materials have widely different uses. Fly ash can be a 

valuable additive to cement, bottom ash may substitute successfully for aggregates 

and as a winter traction aid in some uses, boiler slag is used as a sand blasting 

agent, and FGD sludge has been used successfully as a source of gypsum in 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

Page 12 

drywall. Also, they have somewhat different engineering 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 practices at both older 

and new units. 

The ash generation figures provided in the docket appear to be grossly 

exaggerated compared to the figures provided to Maryland for Maryland generators. 

The reports for the Maryland utilities as well as other generators in the State for 

calendar 2008 and 2009 can be viewed on the Department’s website at

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts/Pa

ges/Programs/LandPrograms/Solid_Waste/ccbs/index.aspx. 

 3. The regulatory approaches proposed in the notice and 

the alternative approaches EPA is considering as discussed 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 258, where States must integrate 

the federal standards into their program and seek program approval from EPA under 

40 CFR 239. This would eliminate the potential for State and federal regulators to 

work at cross purposes, and facilitate compliance. It would also allow the States to 

provide detailed technical review by hydrogeologists and engineers from the solid 

and industrial waste permitting units to proposed CCR disposal facilities, to ensure 

that these units are safely designed and operated. This is much more desirable than 

relying on third-party certifications by consultants whom may not as fully cognizant of 

the geotechnical conditions that exist in any given area, or be as familiar with the 

historical operating conditions at a particular site, as State government scientists 

whom work in the area full-time. 

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 Subtitle D, would also be 

acceptable if properly implemented. It is noted that 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 environment and the public health. 

The Department does not support the “D Prime” alternative, 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, characteristics of 

the CCRs, and whether they are co-managed with other wastes 

generated by the non-utility industry. 

The Department collects volume and other information from the other non-utility 

CCR generators in Maryland. This information is provided on our website at 

http://www.mde.state.md.us/programs/Land/SolidWaste/CoalCombustionByproducts
Maryland Department of the Environment – Comments for 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 representative 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 analytical information from the 

CCR generators in Maryland. This information for calendar 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 performance 

standard, such as the performance standard in 40 CFR 258.40(a)(1), 

or a site specific risk assessment, or a standard that the 

alternative liner, such as a clay liner, was at least as effective 

as the composite liner. 

Maryland would support flexibility to allow alternative 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 differently in practice 

than modeled in the risk assessment, including specific data on the 

hydraulic conductivity of clay liners associated with 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. Montmorillonites such as bentonite, among 

other clay minerals, can exhibit this behavior. When saturated and under a heavy 

load such as a large landfill or impoundment, a clay liner can exhibit pumping or 

increased likelihood of structural failure. Therefore, the Department does not 

recommend “clay only” liners, and requires that a vertical 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 most of the hydrogeologic regimes 

that occur in the State. 

D. Beneficial Use
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

Page 14 

1. The growth and maturation of state beneficial use programs 

and the growing recognition that the beneficial use of CCRs is a 

critical component in strategies to reduce GHG emissions taking 

into account the potentially changing composition of CCRs as a 

result of improved air pollution controls and the new science on 

metals leaching. 

The use of CCRs in concrete and cement products reduces 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 otherwise have to be mined, and 

therefore decreasing the use of fuel to mine, process, and transport the displaced 

materials. In addition to CCRs the producers generate, they import and utilize CCRs 

produced by utility industries; for example, one cement producer reported importing 

over 220,000 tons of CCRs from other generators. Again, 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 requested or becomes aware of a 

proposed use. However, on February 26, 2010, MDE proposed regulations for the 

beneficial use of CCRs that would require extensive characterization of CCRs prior 

to several proposed uses of unencapsulated materials, 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 require 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 contact time may be better models 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, would be 

allowed for unencapsulated uses. 

3. The appropriate means of characterizing beneficial uses 

that are both protective of human health and the environment and 

provide benefits. EPA is also requesting information 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 programs. 

See MDE’s response to V.D.2 above concerning MDE’s proposed CCR beneficial 

use regulations. The proposed regulations are currently 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. 

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

Page 15 

unencapsulated uses of CCRs) warrant tighter control and why such 

tighter control is necessary. 

The Department believes, based on the review of data available to the Department, 

including information provided by EPA in the Notice of Data Availability concerning 

CCRs and numerous other sources, that unencapsulated uses of CCRs generally 

require tighter control s than applications where the CCBs are chemically and/or 

physically bound. 

5. If EPA determines that regulations are needed for the 

beneficial use of CCRs, should EPA consider removing the Bevill 

exemption for such uses and regulate these uses under RCRA subtitle 

C, develop regulations under RCRA subtitle D or some other 

statutory authority, such as under the Toxic Substances Control 

Act? 

The Department considers CCRs to be a largely non-hazardous industrial waste, but 

believes that there is a need for regulation of activities purported to be “beneficial 

uses” of CCRs. The Department believes that RCRA Subtitle D (and corresponding 

state authority) is the appropriate basis for such regulations 

6. Whether it is necessary to define beneficial use better or 

develop detailed guidance on the beneficial use of CCRs to ensure 

protection of human health and the environment, including whether 

certain unencapsulated beneficial uses should be prohibited. 

The Department has elected to propose management standards for beneficial uses 

only for certain unencapsulated uses for certain CCRs, and has proposed to prohibit 

others; however, this regulation is not yet finalized. 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 response to V.D.2 above 

concerning MDE’s proposed CCR beneficial use regulations. 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. 

7. Whether the Agency should promulgate standards allowing 

uses on the land, on a site-specific basis, based on site specific 

risk assessments, taking into consideration the composition of 

CCRs, their leaching potential under the range of conditions 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 Department has elected to propose 

management standards for beneficial uses only for certain 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 proposed CCR beneficial use 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

Page 16 

regulations. 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. 

8. If materials characterization is required, what type of 

characterization is most appropriate? If the CCRs exceed the 

toxicity characteristic at pH levels different from the TCLP, 

should they be excluded from beneficial use? When are totals levels 

relevant? 

The Department’s proposed regulations for the beneficial use of CCRs would require 

extensive characterization of CCRs prior to several proposed uses of 

unencapsulated materials, 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 require 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 contact time may be better models 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, would be allowed for 

unencapsulated uses. We believe that materials that 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 than 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 leadership.

9. Whether EPA should fully develop a leaching assessment 

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 potential release rates 

over a specified period of time for a range of management 

scenarios. 

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

10. Historically, EPA has proposed or imposed conditions on 

other types of hazardous wastes used in a manner constituting 

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-nutritive and toxic 

metals in zinc fertilizers produced from recycled hazardous 

secondary materials (see 67 FR 48393; July 24, 2002). Should EPA 

establish standards, such as maximum/minimum thresholds, or rely on 

implementing states to impose CCR site-specific limits based on 

front-end characterization that ensures individual beneficial uses 

remain protective? 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

Page 17 

The Department is interested in reviewing information 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 issue, 

suggestions on methods by which the Agency could reduce any 

stigmatic impact that might indirectly arise. We are seeking 

information on actual instances where ``stigma'' has 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 recycling are not subject to public 

rejection due to perceived hazardous qualities of the material, MDE notes that CCRs 

are not familiar to most citizens – they are an unknown 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 beneficial 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 recycling and an increase in 

disposal. The impacts of increased hazardous waste disposal have been discussed 

previously. 

EPA can help mitigate the stigma by appropriately characterizing the material under 

existing standards. A federal program and the necessary 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 relying on 

certifications by independent registered professional hydrologists 

or engineers of the adequacy of actions taken at coal-fired 

utilities to design and operate safe waste management systems. 

Throughout the sections of the proposed regulation governing groundwater 

monitoring and remediation, 40 CFR 257.90 to .98, heavy reliance on third-party 

contractors to make important determinations is noted. While a similar approach 

was taken in 40 CFR 258, it was done with the knowledge that most, if not all States, 

would avail themselves of the opportunity to seek EPA program approval to allow 

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 engineers 

and geologists are reputable and reliable, this approach has the potential for abuse, 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

Page 18 

and does not allow for the involvement of experienced State professional staff to 

correct misinterpretations without federal litigation. It is noted that in the Preamble, 

EPA itself acknowledges this as a concern. The approach 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 requirements 

similar to 40 CFR 258. 

2. Whether the subtitle D option, if promulgated, should 

allow facilities to use alternative designs for new disposal units, 

so 

long as the owner or operator of a unit could obtain certification 

from an independent registered professional engineer or hydrologist 

that the alternative design would ensure that the appropriate 

concentration values for a set of constituents typical of CCRs will 

not be exceeded in the uppermost aquifer at the relevant point of 

compliance (i.e., 150 meters from the unit boundary down gradient 

from the unit, or the property boundary if the point of compliance 

is beyond the property boundary). 

See comment V.F.1 above. 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. States should be allowed to provide detailed technical 

review by hydrogeologists and engineers of their solid and industrial waste 

permitting units of proposed and active CCR disposal facilities, to insure that these 

units are safely designed and operated. This is much more desirable than relying on 

third-party certifications by consultants whom may not as fully cognizant of the 

geotechnical conditions that exist in any given area, or be as familiar with the 

historical operating conditions at a particular site, as State government scientists 

whom work in the area full-time. 

3. Whether the subtitle ``D prime'' option is protective 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 composite liners but could continue 

to operate for their useful life.” As the Department understands that many of the 

existing impoundments are not lined, we do not see how this could be as safe as an 

appropriate regulatory system that does require safe closure or retrofit within a 

reasonable time. However, the Department encourages EPA to adopt a proposal 

similar to the 40 CFR 258 rule, not “D Prime” or either of the proposed rules. 

G. Financial Assurance.

1. EPA broadly solicits comments on whether financial 

assurance should be a key program element under a subtitle D 

approach, if the decision is made to promulgate regulations under 

RCRA subtitle D. 

The Department believes that if a Subtitle D approach is adopted, financial 

assurance similar to those in 40 CFR 258 should be included in the regulation. 
Maryland Department of the Environment – Comments for 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 ensure the safe 

management of CCRs, not only under State waste authorities, but 

under other authorities as well, including the implementation of 

those approaches. 

Maryland has undertaken an extensive program to adopt 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 actions 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 current form at 

http://www.dsd.state.md.us/comar/SubtitleSearch.aspx?search=26.04.10.*. It also 

references other pertinent regulations that govern industrial waste landfills including 

CCR landfills, and mine reclamation activities including placement in coal and noncoal mines. More information concerning the adoption of these regulations, 

including all of the comments received and MDE’s responses 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 regulations governing the 

beneficial use of CCRs. The proposed regulations will 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 received. MDE is currently 

reviewing those comments. They were published in the Maryland Register edition of 

February 26, 2010, which is available through the Maryland Division of State 

Documents. See http://www.dsd.state.md.us/MDRegister/mdregister.aspx#3705 for 

more information 

The Department would be willing to provide additional information concerning the 

composition and activities of the program as requested. 

2. The potential of federal regulations to cause disruption 

to States' implementation of CCR regulatory programs under their 

own authorities, including more specifics on the potential for 

procedural difficulties for State programs, and measures that EPA 

might adopt to try to mitigate these effects. 

As noted in the response to V.H.1 above, the Department has recently undertaken 

an extensive program to regulate CCRs. Implementation of the program occurs 

through the Land Management Administration’s Mining and Solid Waste Programs, 

the Air and Radiation Management and Water Management 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 actions involving CCR sites. 
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

Page 20 

As already discussed, the CFR257 option would be very disruptive and less 

protective than the current State regulations. The Subtitle C option, in addition to 

significant resource and stigma issues already discussed, would require revision to 

most of Maryland’s recently enacted CCR requirements. 

The approach like that used for 40 CFR 239, to implement 40 CFR 258 would 

present the fewest procedural difficulties. 

I. Damage Cases

 EPRI's report and additional data regarding the proven 

damage cases identified by EPA, especially the degree to which 

there was off-site contamination. 

 

The Department affirms that the BBSS site in Anne Arundel County, Maryland, which 

was cited by EPA as a site with confirmed impact due to CCRs, is in fact such a 

case. However, commenters have used this example to support the position that the 

States have not effectively addressed coal combustion residuals, and that the only 

alternative is to regulate these materials as hazardous 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 require 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 needed to be regulated as a 

hazardous waste. At the time of that enforcement action, Maryland had already 

initiated a process to promulgate new regulations for the disposal, storage, 

transportation, and use in mine reclamation that include permitting, design, 

monitoring and closure requirements that are very similar to and in some areas more 

protective than the proposed federal regulations. This approach, as well as the 

success of the 40 CFR 258 regulations governing municipal waste landfills, 

demonstrates that designation as a hazardous waste is not the only mechanism 

available to ensure that public health and the environment are protected from the 

potential adverse effects of coal combustion residuals.
Maryland Department of the Environment – Comments for EPA Docket ID No. EPA-HQ-RCRA-2009-0640 

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Appendix: Recommended Routine Groundwater Monitoring 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