### Appendix

Wisconsin Department of Natural Re sources comments on the United State Environmental Protection Agency’s Pr oposed Rulemaking on Coal Combustion

Residuals From Electric Utilities

ATTENTION: Docket ID No. EPA-HQ-RCRA-2009-0640

A. Background Information and General Comments

B. Specific comments on proposed rules

• Solid and hazardous waste management

• Damages Assessment

• Stigma effects

C. Specific information Wisconsin ’s beneficial use program.

D. Wisconsin DNR Report on damages entitled Groundwater Impacts from Coal Combustion Ash Disposal Sites in Wisconsin (Phil, Date?) Zillmer & Fauble,

WDNR

E. Wisconsin Correspondence concerning regulation of CCR

• Wisconsin Department of Natural Resources, and

• Testimony of Ann Coakley, Director of the WDNR Bureau of Waste and Materials management at EPA heari ng in Chicago, IL on September 16, 2010Appendix – Section A

Background Information and General Comments

1. Introduction . On behalf of the Wisconsin Department of Natural Resources (WDNR or department), we appreciate the opportunity to comment on the proposed rule entitled Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, published in the Federal Register on June 21, 2010 (Volume 75, Number 118). This appendix contains comments on the proposal and further information on Wisconsin’s solid and hazardous waste programs.

The department supports proper management of Coal Combustion Residuals (CCR) for the protection of human health and the environmen t. The department supports regulation of CCR materials under Subtitle D of the Resource Conservation and Recovery Act (RCRA) as an industrial solid waste subject to oversight by the proper state environmental agency under a program authorized by the U.S. Environmental Pr otection Agency (EPA) similar to the approach used for municipal solid waste program authorization under 40 CFR Part 258 rules.

The department finds the portion of the proposed rule for regulation of CCR under Subtitle C of RCRA as a special waste unnecessary and unacceptabl e as CCR material does not meet existing criteria for regulation under Subtitle C as a hazardous waste. The Subtitle C portion of the proposal imposes severe waste management restri ctions on utilities and creates unwarranted economic hardship for utilities and rate payers. This Subtitle C approach further subjects state hazardous waste programs to an unnecessary and unfunded regulatory burden at a time when existing resources are stretched thin and further hazardous waste funding is unavailable.

This position is supported by the Governor of the Wisconsin and is consistent with past correspondence to EPA. Please see th e attached correspondence in Section E of this appendix.

2. Background on Wisconsin’s Solid Waste Program. The Wisconsin solid waste management program has been in place for almost 40 years and is a national leader in solid waste management and landfill design.. The regulation of existing so lid waste landfills and assistance to local governments and industry in developing new envir onmentally safe landfills and appropriate waste management practices are a major part of this program.

In the early 1970's all operating solid waste fa cilities throughout the state were identified and licensed. Many solid waste facilities in enviro nmentally sensitive areas were closed. The remaining landfills which posed the greatest threat to the environment due to their hydrogeologic setting or poor operations were required to mon itor groundwater and surface water. By the mid 1970's groundwater monitoring data provided documentation "natural attenuation" sites were causing significant groundwater quality impacts and more closed. In 1984, the Wisconsin legislature passed a comprehensive groundwater law and made the WDNR responsible for establishing a list of substances which have been detected in or have a reasonable probability of entering groundwater.

Based on the landfill performance and design expe rience gained in Wisconsin during the 1980's and the state's groundwater legislation, revised so lid waste rules (chs. NR 500 to 520, Wis. Adm. Code) were established in 1988. These rules require all landfills to be designed with a 5-foot thick clay liner and a leachate collection system and contained locational criteria, specific design andUS EPA Proposed Rulemaking - Coal Combus tion Residuals From Electric Utilities

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construction documentation criteria, operating crite ria, environmental monitoring standards, and closure and post-closure care standards.

In 1996, Wisconsin further revised its solid w aste rules to require all municipal solid waste landfills to be designed with a composite liner (a geomembrane liner on top of a 4-foot thick clay liner) and a composite final cover system. The revised rules, which also include financial assurance standards set in the early 1980's, now exceed the federal Subtitle 'D' rules for municipal solid waste landfills. In fact, Wisconsin was the firs t state in the nation to receive approval of its solid waste program by the EPA.

Wisconsin pursued and ha d developed a formal process for allowing the beneficial use of high volume industrial byproducts such as CCRs. The department’s program covering beneficial use of industrial byproducts is codified in ch. NR 538 Wis. Adm. Code. Ch. NR 538, Wis. Adm. Code was developed after a 2 year period with ex tensive input by a technical advisory committee comprised of representatives from industry, acad emia and environmental groups. The rules became effective December 1, 1997. From this t echnical advisory and rule making process, it was clear that, in order to be effective at enc ouraging beneficial uses and diverting industrial byproducts from landfilling, the resulting regulati ons had to not only protect the public and the environment, but must set clear standards for permissible uses, be flexible and establish a streamlined regulatory approval process. This program has been very successful as it ensures environmental protection while avoiding un duly burdensome regulatory oversight and is recognized by EPA in the proposed rule discussion.

3. Department Regulation of Coal Combustion Residuals. The department and Wisconsin utilities also have more than 40 years of experience regulating and managing CCR materials. Regulation of CCR extends back to the 1970s when Wisconsin passed legislation for solid waste management that covered industrial solid waste including CCR materials. Department staff and Wisconsin utilities have worked cooperatively to ensure proper waste management and appropriate beneficial use of CCR material. Utilities, working with WDNR, progressively stopped using coal ash sluicing ponds and all the sluicing surface impoundments are now closed. Because of WDNR long-time regulation of CCR landfills, we have a large environmental database on disposal sites and activities. This da ta shows that while improper management of

CCR wastes can result in adverse environmental impacts to groundwater, the data set for more highly engineered CCR landfills that include lin ers and leachate collection systems demonstrate that liners and leachate collection systems are ef fective in protecting groundwater from adverse

effects of CCR materials.

Wisconsin utilities currently operate 10 licensed active coal ash disposal landfills. Some power plants are also dependent on municipal solid w aste (MSW) landfills for CCR disposal. Wisconsin utilities generate approximately two million tons of CCR annually. In addition to generating revenue, beneficial use activities save landfill space , reduce energy costs, reduce the need for virgin products, and result in fewer greenhouse gas emissions. Historically, up to 80 percent of CCR materials have been beneficially used in Wisconsin, with some utilities exceeding 90 percent. This is accomplished through use in products or substitution of virgin materials [e.g., wallboard, cement or brick manufacturing, use as geotechnical fill, soil amendment, etc]. These are legitimate uses that are protective of human health and the environment.

Wisconsin beneficial reuse has resulted in appr oximately 10.4 million cubic yards of CCR being used in place of other materials. This is equivalent to 3 or 4 ash landfills

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4. Input from Wisconsin Utilities. Department staff and managers met with Wisconsin utility representatives to discuss the federal proposal . These electric utilities include We Energies, Alliant Energy, Wisconsin Public Service Cor poration, Dairyland Power, Xcel Energy, and Madison Gas & Electric As noted previously, th e department has many years of experience working with these companies on regulatory issues in general and waste management issues in particular, and we have a good working partners hip on waste management and beneficial use of

CCR materials.

At this meeting, the Wisconsin utilities expressed support for Wisconsin’s regulatory approach. Furthermore these utilities agreed that EPA should use state regulation under Subtitle D with EPA and state program oversight. WDNR and these u tilities believe a program for industrial wastes similar the EPA MSW Subtitle D program that allows for states to use their own regulations and statutes and resources to ensure quality industria l landfill siting, design, monitoring, operation and maintenance, along with a companion benefi cial use program for appropriate industrial byproducts, is a better approach than the EPA Subtitle D self implementing approach.

The Wisconsin utilities expressed significant con cern over the possible regulation of CCR as a special waste under Subtitle C of RCRA. No h azardous waste landfills currently operate in Wisconsin and siting any new CCR landfill using S ubtitle C procedures would be difficult if not impossible. Furthermore, it is unlikely that utilities wi ll be able to continue to send ash to contract MSW landfills under the Subtitle C proposal. If the ru le were to pass under Subtitle C, Wisconsin utilities may need to site up to 10 new landfills under RCRA Sub C rules in the next few years. The capacity of these landfills would need to handle up to 2 million cubic yards of CCR material

per year.

Wisconsin utilities stated some limited benefici al use may continue with regulation under the Subtitle D proposal. They expressed grave concern about the effect on beneficial use if the CCR rule proposal is promulgated under Subtitle C. These utilities (and the department) believe beneficial use will drop dramatically if not cease all together if CCR is regulated at a special

waste under Subtitle C. Concerns over continue d beneficial use of CCR is regulated as a hazardous waste, even if called a special waste, expressed by the utilities inlcuded:

• Use of the material would not be allowed or would be limited when the CCR is used as a geotechnical fill. Limitations on the use of C CR as geotechnical fill will be affected in a negative way whether the final rules are promulga ted under Subtitle C or D. Any rules, when promulgated, need to state clearly what mate rial would be allowed and how the CCR material could be used as geotechnical fill.

• Use in products may be limited. For instance, wallboard is a significant ma rket for coal ash. It is unlikely that manufacturers will continue to use materials regulated as hazardous waste in the manufacturing of material that will be used in residential markets. This is the stigma issue EPA is asking about in their request for comments.

• If the proposed rule were to pass under Subtitle C, there will be an increased need for additional hazardous waste land disposal facilities and Wisconsin utilities may need to site

more than 10 new hazardous waste CCR landfills in the next several years, with an equal capacity to the currently licen sed facilities. Siting these landfills would be expensive and

difficult.

• Wisconsin utilities have contracts that cont ain language with non-hazardous waste or hazardous material clauses. If regulated under Subtitle C, these clauses would allow for

contract termination.

• Wisconsin Utilities have already seen effects to their beneficial use programs caused by the proposed rules. Customers are raising questi ons concerning legal liabilities. Multiple utilities

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identified examples where customers will no l onger use CCR material if regulated under

subtitle C.

• The EPA proposal does not allow beneficial use of CCR to the extent allowed by WDNR. As proposed, the rules appear to a llow CCR as a replacement product for a virgin material in a manufacturing process (encapsulated use, such as wallboard or cement), but not in a manner where the material would be used in direct contact with the ground (unencapsulated use, such as geo-technical fill or soil amendment). Again, some manufacturers do not want to use a

material that has been classified as hazardous waste in their product.

• Not all CCR materials are the same and should not be in the same broad regulatory category. Beneficial use activities of CCR materials vary by chemical and physical properties.

• There will be significant increase in the cost to manage CCR that were formerly beneficially

used. In addition to the loss of revenue caused by removing this material from the beneficial use market, there will be an increase in the u se of virgin materials needed to replace CCR materials resulting in increased greenhouse gas production.

Other concerns raised by Wisconsin utilities include:

• The Federal one size fits all approach is not appropriate.

• The stigma affect from potential regulation unde r Subtitle C has already started and this

effect will become worse when the tules are finalized.

• Two utilities indicated they beneficially used over 90% of their CCR materials generated in 2009. Both indicted regulation under S ubtitle C would stop beneficial use.

• Regulation under Subtitle D would stop use of CCR as geotechnical fill which is a major option for management of bottom ash and slag.

• Utilities are concerned about their coal ash re-burn programs which recover unused energy without mining virgin coal.

• Regulation under Subtitle C will result in less material beneficially used, greater capitol invested to maintain and operate existing la ndfills, and the significant costs of siting new hazardous waste landfills. In addition, there ar e the costs associated with hazardous waste manifests & transportation, increased cost to hire and train new staff, etc. One utility estimates that Subtitle C could cost up to $300 million per year . This will be passed on to rate

payers.

• Limitation of existing landfill capacity.

5. General problems the proposal creates for the state and utilities. Given Wisconsin’s success and experience over the past 13 years at regulating CCR landfills under the State of Wisconsin’s Subtitle D equivalent program, WDNR does not support the portion of the proposal to regulate CCR as a special waste under Subtitle C of RCRA. Subtitle C level of oversight is not

warranted and we believe Subtitle C would be an excessive regulatory and workload burden for both the utility industry and WDNR. We do not believe CCR material is hazardous waste under current definitions promulgated under RCRA. However, both proposals, regulation under Subtitle C or Subtitle D contain major flaws. Major deficiencies of rule proposals include:

• Failure to recognize and build upon successful state programs like Wisconsin’s,

• Proposing an alternative to regulate CCR material as a special waste.

• Lumping all CCR material into a single category,

• Failing to develop consistent definitions for CCR materials and actions to be used during implementation, and

• Inadequately addressing liability concerns for businesses wanting to beneficially use CCR

material.

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In order to remedy these deficiencies, the department recommends that EPA:

• Review federal authority to regulate CCR material under Subtitle D of RCRA in a manner consistent with the municipal solid waste program authorization under 40 CFR Part 258 rules.

• If this re-examination results in EPA continuing to believe they do not have authority, then consider going to Congress to request the necess ary authority. It appears many states’ environmental protection agencies and other part s of the federal government would support this approach.

• Consider alternative regulatory approaches su ch as promulgating a coordinated approval process with the states and examine regulatory approaches to reduce costs without affecting public health.

• Develop comprehensive guidance to be issued simu ltaneously with the final rules that include unambiguous definitions.

• Work closely with States on implementation of the final rule and development of the guidance necessary for consistent implementa tion of CCR regulations under Subtitle D of

RCRA.

• Provide incentives, not impediments, for beneficial use programs.

The department believes the classification of CCR as a special waste under Subtitle C will create a stigma against the use of CCR material, resulting in a significant reduction in CCR material being beneficially used. These include liability c oncerns, uncertainty over the use of material, and increased costs for both replacement materials and increased disposal of material that was formerly used. If CCR were treated as a hazardous waste, even if called a special waste, then it

would limit the beneficial use mark et significantly. Reasons include:

• Use of the material would not be allowed in a manner constituting disposal, so use as a geotechnical fill would no longer exist, and application such as soil amendment would be

removed until such time that a federal determina tion could be made that it is a legitimate use.

If this would be allowed then the rules need to state clearly what material would be allowed

and how the CCR material could be used.

• Use in products may be limited. For instance, wallboard is a significant ma rket for coal ash. It is unlikely that manufacturers will continue to use materials regulated as hazardous waste, even if called a special waste, in the manufacturi ng of material that will be used in residential markets. This is the stigma issue EPA is asking about in their request for comments.

In order to accomplish this recommended approach, EPA should undertake considerable additional analysis based on comments, revise its proposed rule to focus solely on regulation

under Subtitle D of RCRA in a manner consistent with the approach used for municipal solid waste that calls for state oversight. Once these re vised rules are drafted, EPA should provide for additional public comments.

The department further recommends to EPA that the best management practices for CCR

materials is under an effective Subtitle D w aste management program with adequate state oversight. An effective subtitle D program is a solid waste program with sufficient state regulatory over-sight covering: facility siting, lin er requirements, monitoring, capping, long term care and financial responsibility that should be ad equate to ensure proper management of CCR material. This must include review by state Wast e Program Regulatory staff in siting, design, and construction to ensure compliance. Based on our experience, WDNR does not believe the EPA self-implementing approach would be successful and the self-implementing provision should be removed and replaced with a requirement for stat e oversight where states can demonstrate an effective program under Subtitle D. WDNR recomm ends EPA reexamine its interpretation of its regulatory authority to delegate to states the aut hority to manage Subtitle D equivalent programs.

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If additional authority is needed for EPA to dele gate such a program to the states, then EPA should work with Congress to create the necessary authority.

In addition, rather than limit the use of CCR, WDNR believes EPA should provide incentives to encourage the beneficial uses of CCR. This should be done to:

• Encourage the use of these materials as substitu tes for virgin products or feedstock,

• Reduce landfilling of industrial solid w aste that has beneficial use, and

• As new air pollution control requirements are established, motivate utilities to develop and utilize technologies that will continue to generate high quality CCR material with good beneficial use properties while minimizing the volume of heavily contaminated CCR material that may be generated and must be landfilled. If all CCR is classified as a special waste under Subtitle C, then there will be no incentive to further such waste volume reduction technologies or to beneficially use CCR material.

6. Guidance is Needed . For a rule of this complexity and scope, it is essential that EPA provide guidance for implementation when the final rule is issued. Affected facilities and state agencies will necessarily rely on EPA’s guidance for th e successful and consistent implementation of federal CCR regulations.

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### Appendix – Section B

Specific comments on proposed rules

o Solid and hazardous waste management

o Damages Assessment

o Stigma effects

1. In response to page 35133, Item 2.a. of the preamble, Summary of Subtitle C Proposal. In Wisconsin there are no CCR surface impoundments. We agree that sluicing impoundments for management of CCR waste should no longer be u sed. WDNR’s existing program for disposal of industrial solid waste effectively discourages use of surface impoundments. We do not believe that the RCRA corrective action program is needed at Wisconsin utility locations. Wisconsin has sufficient regulatory authority to remediate sites under our Waste and Materials Management program and our Remediation and Redevelopment program.

2. In response to page 35135, Regulation of waste Under RCRA Subtitle C, CCR does not

meet current criteria for characteristic or listed hazardous wastes. While EPA could list CCR as a “special waste”, there is no compelling need to do so . If the need is to ensure proper management of the CCR waste stream, this can be accomplishe d by managing CCR as a solid waste. In this discussion, it seems that the rationale for Subtitle C regulation is more so to impose federal regulations on CCR material, rather than a need due to the specific hazardous constituent that may be found in CCR material.

3. In response to page 35148, III. Overview and Summary of the Bevill Regulatory Determination and the Proposed Subtitle C a nd Subtitle D Regulatory Options, the discussion states that in May 2000, EPA concluded dispo sal of CCRs did not warrant regulation under Subtitle C, but did warrant regulation under S ubtitle D of RCRA. WDNR supports EPA’s May

2000 conclusion and believes EPA should use its limited resources to develop a subtitle D program as discussed in this set of comments. This seems to be an effective management approach given the experience WDNR has with these materials as opposed to beginning the regulatory assessment again. Any potential benefits that may be gained by going with subtitle C regulations will be lost in the time and effort to develop and implement subtitle C regulations.

4. While the dam safety issue addressed on page 35148 is important to include for surface impoundments, if EPA desire is to end the use of this outdated waste ma nagement approach, EPA should develop regulations calling for the phase out of surface impoundments. Furthermore, phasing out of surface impoundments and going with dry technology will address hazards posed by impoundments through dam failure should EPA act expeditiously.

5. Regarding applicability of the rule, page 3512 9 and the proposed rule state that the rule will apply to CCR generated by electric utilitie s and independent power (which includes combined heat and power) producers that sell to the public. It also states that it does not apply to

ash minefills or current beneficial reuse of ash and that it does not apply to CCRs from non-utility

boilers.

This implies rather than states that utility combustors that use exclusively use biofuels, RDF, TDR, chipped wood, post-consumer waste wood, C&D, etc., are not subject to the proposed rule. This also implies that utility combustors that burn a fuel mix of coal and other fuels are subject to the proposed rule. Explicit clarifica tion is needed in the final rules.

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6. The definition of “CCR landfill” specifically includes piles, sand and gravel pits, quarries, large scale fill operations, and “sites that are excavated so that more coal ash can be used as fill”. As worded, it is not clear that it excludes co-disposal with MSW or other non-MSW wastes, which leaves open the potential that such sites would also be CCR landfills and subject to the rule. The proposed applicability section in s. 257.40, RCRA Sub D, (see p. 35240) refers to “CCR landfills”, which in turn refers to “CCR”, which are defined in te rms so general that nonutility CCR disposal facilities seem to be included, versus the more specific reference in s. 261.4(4), RCRA Sub C (see p. 35254), to CCRs fro m combustion of coal primarily for generation of electric power or combined heat and electric power by the electric power sector.

7. In section I.D., p. 35136, Regulation of solid wastes under RCRA Subtitle D, the legalanalysis claims that EPA does not have authority to establish nationwide standards for nonmunicipal solid wastes. It can be noted that States have generally adopted, as a minimum, the part 258 rules and incorporated them into their previously established programs. If EPA feels that it lacks authority to implement such an approach, th ere are a couple of tactics that could be used. One is to seek congressional authority for the approach . The other is to draft a rule similar to s. 40 CFR 761.77, TSCA coordinated approval, as a stopgap until EPA seeks and obtains federal authority to authorize State programs to regulate CCR waste disposal.

8 Use of commercial solid waste landfills for ash disposal may not be available for utilities under a Subtitle C option, as MSW landfill operators do not know whether their facilities would be subject to the same regulation as utility ash landfills. Feedback from some MSW landfill owners is that they would cease accepting CCRs from utilities if the Subtitle C hazardous waste option were chosen.

Contrary to EPA’s stated opinion in the preamb le, there is no likelihood that Wisconsin can

increase environmental fee revenue to address the additional burden of Sub C regulation option. Given the current economic climate, the same is likely true for most other state environmental agencies as well.

9. If EPA wants to maintain fede ral oversight in a Sub D context, it should be easy to draft rule language similar to the s. 40 CFR 761.77, au thority for a TSCA coordinated approval, to establish as RCRA Sub D coordinated approval process.

Under this authority, State agencies would ha ve primary responsibility to perform review and issue approvals/permits, but EPA Regions would review the proposed plants and the draft approvals/permits for compliance with their concerns and, if need be, issue a concurrence letter or similar regulatory communication. This appro ach could serve as a permanent arrangement or serve as a stopgap until EPA seeks and obtains federal authority to authorize State programs to regulate CCR waste disposal. It should minimize workload on the Regional staff, utilize existing State authorities, staff, and procedures efficien tly, reduce potential cost impacts on both state and federal programs, and maintain the current st atus of States being the primary contact and enforcement route for utility ash disposal sites.

EPA could still establish a set of requirements to be met, at a minimum, by CCR landfill operators. This would present a challenge and a target for State ag encies to utilize in State rule revisions, and also provide substantive basis fo r States to impose require ments listed in federal requirements if State rules do not include them. This means that it should be possible for rapid implementation of the CCR rule change. If EPA was concerned about the content of State rules including, at a minimum, all federal requirements, the rule could include a time limit for States to

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seek rule changes through their individual rule-making procedures and demonstrate the achievement to the Regions.

10. EPA claims that the Sub C approach is needed to address “cradle to grave”, meaning transportation, storage, or treatment as well as landfilling. States already have or could readily establish authority for transportation, storage, or treatment of CCR prior to landfilling. It seems overkill to justify the need for a Sub C approach simply to establish EPA authority over transportation, storage, or treatment which ade quate regulation under State rules could achieve the same goal.

11. The preamble states on p. 35160 that “EPA al so does not have the authority to determine whether any state permitting program for CCR facility is adequate”. EPA Regional staff did not seem to have undue difficulty with becoming fam iliar with State rules when reviewing State MSW landfill regulations as part of seeking auth orization under part 258 MSW landfill rules, nor in making decisions about their adequacy. EPA Re gional staff, in our experience, are reasonably familiar with State rules, including many or all requirements for non-MSW waste disposal sites. It should also be pointed out that State agency plan review staff are already in a position to achieve the goal repeated often in the preamble , of effectively implementing regulations and tailoring them to individual site conditions.

12. The discussion of unencapsulated uses on pp. 35160 – 35166 proposes to define CCR use in filling quarries, etc., as landfills, which we be lieve is not reasonable, since they lack

containment features that have come to be used to define landfills. We agree that large-scale fills in quarries is not a good idea due to absence of liners and leachate collection systems. This is not the same if the project includes protective featur es to include liners and leachate collection, monitoring and final cover systems.

Agencies, such as Wis. Dept of Transportation (WisDOT), will object to labeling beneficial use projects as landfills, due to public and internal objecti on to landfills. Plus, beneficial use projects are not subject to the landfill siting process, a multi- year review step that includes a lot of code and statutory requirements that beneficial use app lications can’t meet, even if the owners included the physical design and construction controls to protect groundwater. The Wisconsin Department of Transportation objects to use of material that might be categorized as hazardous waste and will not use ash for highway embankments if they are c onsidered landfills, even if they include liners, caps, and leachate collection details.

We can support the last bulleted item under the section entitled “4. Issu es Associated with Unencapsulated Beneficial Uses”, suggesting that beneficial use not include unencapsulated uses in direct contact with water bodies, including the seasonal high groundwater table. It is important to distinguish that situation from beneficial u ses that include protective design features such as liners and leachate collection, gradient control sy stems, caps, groundwater monitoring, etc.

13. There is a solicitation for information a nd data on CCR generated by non-utilities and

mixes with other wastes at the end of the section entitled “F. EPA is not proposing to revise the Bevill Determination for CCR generated by non- utilities”. Wisconsin has several papermill

waste landfills and some of other industries that co-dispose of coal or mixed-fuel wastes with papermill sludge, yard waste, bark, process rejects such as knots, etc. The request involves

considerable effort to collect the informa tion about specific generators, waste volumes, characteristics, and other unspecified information.

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Since EPA has already decided that the proposed rules will not apply to non-utility CCR disposal, we do not see the value of assembling this informatio n for comment on this rule. However, this is an important issue for non-MSW landfill regulation in Wisconsin, and we request that EPA solicit our help and information regarding this issue when they return to the question of regulation of coal ash and/or other wastes generated by the non-MSW, non-utility generators.

One issue not addressed in the rules or preamble is the status of CCR disposed of in municipal or commercial MSW landfills, whether co-diposed wi th MSW and other wastes or placed in a

monofill. If and when EPA chooses to address this issue, we request that EPA solicit our help and information on this subject as well.

14. The proposed rules engender a significant need for guidance, particularly if the RCRA Subtitle C alternative is chosen. Operators, EPA Regional staff, and State agency staff will not automatically be aware of the interpretations in the Preamble and could easily come up with differing decisions. We suggest that the rule not be finalized until guidance is ready to be issued at the same. The guidance needs to incorporate much of the discussion in the Preamble that interprets the rule. Examples follow of items th at need explanation if rules do not specifically

address them.

Two comments of note on p. 35173: Manifesting is required for transport to off-site disposal, but not for disposal sites located on the same property as the combustor generating the CCR. No explanation is provided on issues such as whet her property owned by utilities on both sides of public roads are considered the same property fo r CCR transporter purposed, thus not requiring manifesting, or separate properties, thus requi ring manifesting for the sole reason of hauling vehicles crossing a public road. This situation can easily arise if a utility expands powerplant facilities to fill up its original parcel and purchases additional property for landfilling purposes.

For beneficial use, the preamble states that the Bevill Amendment exemption applies to CCR used beneficially, so that RCRA Subtitle C rules do not apply from point of generation throughout the reuse process. When a produc t using CCR reaches the end of useful life, the product becomes a waste. Whether or not the w aste is subject to RCRA Sub C or D will not be

because of the CCR content but on whether the waste passes or fails the hazardous waste characteristics (TCLP, etc.). Th is appears to answer concerns about whether products or wastes resulting from products would automatically be subject to RCRA Sub C simply because CCR provided some of the ingredients.

Comment on p. 35175: Only new CCR landfills would be required to meet the minimum technology requirements of liners and leachate co llection systems. Existing landfills would be allowed to continue filling without having to be retrofitted with liners and leachate collection systems. Groundwater monitoring, corrective ac tion and other requirements in accordance with the rule would be required at existing CCR landf ills that continue to receive CCR wastes. It should be clearly stated what design requirements that lateral or vertical expansions of such landfills would have to meet, and what are the ot her requirements in the rule that an existing CCR

landfill would have to meet.

15. The discussion on clay vs composite liners in section VI.B.1, pp. 35174 - 35175, and elsewhere in the preamble provides the EPA rationale for the liner design in the proposed rules, justification for changing the RCRA Sub C hazardous waste liner requirements to a single composite liner for special w astes (CCRs) similar to 40 CRF 258 MSW Lf design standards, decision to not allow use of clay liners, and a request for comments on whether clay liners should

be allowed.

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EPA makes certain claims about the performance of clay lined landfills versus composite lined

landfills. Review of the document “Human and Ecological Risk Assessment of Coal Combustion Wastes - Draft”, dated Aug 31, 2009, indicates that any comparison between the two designs is based more on type of final cover and presence or absence of a leachate collection system. This results in an unequal comparison and a false impression of actual impacts.

As described in the ecological risk assessme nt, groundwater modeling was performed using a limited number of presumed designs. In additi on to the unlined scenario, two engineered lined landfill options were assessed:

• The composite liner scenario includes a 60 mil HDPE geomembrane over either a GCL or a 3 foot clay layer, with a leachate collection system (undefined). Final cover design was a three foot clay cover with 1 additional foot of rooti ng zone and topsoil. Post-closure infiltration rates were based on records from MSW landfill exfiltration rates from the primary liners of

double-lined landfills.

• The clay liner scenario uses a 3 ft clay liner with a design hydraulic conductivity of 1x10 -7
cm/sec, with waste placed directly on the liner and no leachate collection system. Final cover design was a three foot clay cover with 1 additi onal foot of rooting zone and topsoil. It appears that infiltration rates were determined from infiltration rates calculated for the clay cap using the HELP model.

• Modeling did not include the active filling period, due to added complexity.

• The modeling runs did not include the presence of a composite cap, which is required in the proposed rules.

Based on Wisconsin experience, which is probably si milar to that of several other States, a clay liner would normally be covered by an operating leachate collection layer. It would be fair to compare clay liner and composite liner designs based on active leachate collection, if the exfiltration records from primary liners of double- lined landfills were from periods of time with

active leachate extraction. Active leachate ex traction should reduce head on the liner, which would affect gradient through the liner and con sequent infiltration rates to groundwater.

It would also be more fair if the clay liner and composite liner designs were modeled using a composite cap as the barrier layer. Based on the cited results for contaminant movements, it is not unreasonable to expect that a composite capped landfill, whether with a clay liner or composite liner, would show similar results.

Unless and until the modeling efforts reflect the proposed designs and the presence of final cover, it is not clear if one liner design is superior to the other, or if both are satisfactory if the designs include a composite cap.

We do not object to use of composite liners if th ey are really needed, but it is not clear that landfills with compacted clay liners, leachate collection systems, and composite caps could not meet the performance objectives of protecting groundwater quality as a drinking water sources and surface water quality. Wisconsin utilities are a llowed to use 4 foot recompacted clay liners with leachate collection systems under current rules. Landfill description and data can be made available if requested.

16 . Regarding the s. VI. B.1.i discussion of th e choice of liner design, we support the requirement for a single composite liner for CCR landfills rather than the current double composite liner requirement in RCRA Sub C. Single composite liners of clay and HDPE

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geomembrane are constructable, as shown by e xperience with composite liners required of MSW landfills in Wisconsin. Our limited experience with double liner designs indicates that doubleliner construction leads to considerable diffi culties in construction and longer construction schedules, and greater potential for construction def ects, which can lead to other problems if the construction season is excessively rainy or winter conditions set in early.

17. Section VI.B.1.i of the preamble, p. 35175, requests comment on allowing alternative liners based on geology or climate. We believe that it is essential for the proposed rule to include flexibility to allow permitting of alternate liner d esigns or geologic situati ons. Two examples of the utility of alternate designs based on geologic conditions in Wisconsin are the zone of saturation landfill liner designs in high-clay envir onments and gradient control systems in areas with high groundwater, both of which appear to pe rform satisfactorily. An example of alternate liner materials is the use of geosynthetic clay liners (GCLs) in conjunction with geomembranes and local soils that don’t meet liner quality specifications.

18 . EPA requests input on pages 35194 & 35197 of the preamble on whether independent 3 rd
party PE is sufficient guarantee that regula tionss will be protective and whether other mechanisms would provide facility flexibility and/orverification. We do not agree with a selfimplementing approach in this proposed rule and be lieve that there is substantial value in a site investigation or siting process and State and/or fe deral agency review. Landfills are similar in magnitude to large public works projects, in th at detailed review by a building permit review engineer is necessary to protect the public interest. The self-implementing nature of the proposed rule is not sufficiently flexible or protective.

We do not agree with the assertion that an independent 3 rd party PE is a sufficient guarantee that solid waste disposal facilities are adequately designed, constructed, operated, or closed. Our concern is based on experience dealing with owners , contractors, and consultants, both in design

and in construction. EPA states in the Preamble that it is concerned about the lack of uniformity or adequacy when comparing State programs. Professional engineers vary in their experience, training, and background in the varied aspects of practice that are needed to design and construct a solid waste facility. They also operate in a ma rket where the need for jobs and market share work against doing more than the lowest common denominator. We have seen the problems that can occur if owners of waste disposal fac ilities select engineering firms that are small, inexperienced, or operating outside of their past professional practice. We do not believe that leaving decisions about acceptability of design or construction solely in the hands of an consulting engineer employed by the landfill owner is adequate.

Landfills are large earthwork structures, and earth work construction is difficult, time-consuming, and subject to delays due to weather and availa bility of equipment and materials, all of which results in considerable pressure to complete projects. This can lead to shortcuts that are not advantageous. We find that inte raction between regulatory sta ff, landfill owners, and technical

consultants is essential to assure that landfill constr uction meets the intent of the facility design.

The proposed notification by use of internet web pages is after-the-fact and does not substitute for interaction with the utility and its consulting engineer at the siting and design stage and observation during construction. We have found th at these steps are crucial for effective design

and documentation of solid waste landfills since landf ill plan review in our agency started in the

mid-1970’s.

The proposed internet web posting of notices and other information may be sufficient for afterthe-fact record-keeping. We do not object to the use of the web, although EPA should be

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cautious to not become dependent on a technolog y that may become outdated. We recommend that the rule require that owner/operators of CCR landfills be required to provide documents directly to the State agencies that regulate landfills. Documents could be provided electronically and, once received by the State agencies, woul d be publicly available under State and Federal public record rules.

If EPA intends to proceed with the RCRA Sub D sel f-implementing alternative, the rule should also clearly state that it does not supersede or override authority by State agencies to require a review process for plan review of siting, desi gn, construction, waste filling, and closure.

It is also essential that the rule containing eith er exemptions or an expeditious conflict resolution process between State agencies and EPA Regions fo r in the event of landfill technology change, improved design methods, construction advances, or other changes that are not compatible with the technical design requirements listed in the proposed rule. Examples of geologic scenarios or construction materials that vary from the proposed rule are cited previously.

19. The proposed notification of the State ag encies discussed on pp. 35194- 35195 or the preamble proposes that a web site maintained by each utility would be required for concurrent notification of States agencies and the public of do cumentation in the operating record. This is after-the-fact reporting of accomplis hed actions, and is not sufficient for effective plan review and interaction prior to changes being made to design, construction, monitoring, recordkeeping, etc. of utility CCR disposal facilities.

We do not object to the posting of information on a web page, as long as cost of maintaining the web page is bourn by the utilities and provisions are made to assure that the web page or successor technologies will be maintained over the time period for siting, licensing, construction, filling, closure, and long-term care, which collectively could be several decades.

However, a more significant issue for environmen tal protection is to assure that State agency authority will be maintained for plan review , licensing, inspections, construction oversight, receipt of monitoring data, etc., without being superseded or compromised by a federal rule. Information should not be withheld from State agencies because of perceptions that it is a duplication of the web-based notification. In particular, documentation of proposed design, achieved construction, monitoring instrumentati on and results, closure work, remedial actions, etc., should be required to be provided directly to the State agency prior to implementation and in accordance with State agency timelin es. The rule should not imply or state that it is sufficient to post information on a web page after the fact as sa tisfying the legitimate interest State agencies have in regulating CCR disposal facilities.

We have found it essential as a State regulatory agency to perform plan review prior to allowing owners to proceed with construction, to inspect facilities during construction, to be able to review construction documentation and any proposals for d esign changes before they are implemented, and to receive all monitoring data for retenti on in and extraction from our electronic database systems. It is not sufficient fo r the State agencies to be notified of such items after the fact.

20. Certain of the definitions on pages 35196 - 35197 should be revised:

“Beneficial use of coal combustion products (CCP s)” specifically excludes CCPs used in excess, such as FGD gypsum land applied in excess of crop n eeds, or placed in sand and gravel pits, or used in large fill projects. This definition should be included in the final rule, given that it is the means to significantly define beneficial use.

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“CCR landfill” specifically includes piles, sa nd and gravel pits, quarries, large scale fill operations, and “sites that are excavated so that more coal ash can be used as fill”. As worded, it is not clear that is excludes co-disposal with MSW or other non-MSW wastes, which leaves open the potential that such sites would also be CCR la ndfills and subject to the rule. The proposed applicability section in s. 257.40, RCRA Sub D, refe rs to “CCR landfills”, which in turn refers to “CCR”, which are defined in terms so general that non-utility CCR disposal facilities seem to be included, versus the more specific reference in s. 261.4(4), RCRA Sub C, to CCR from combustion of coal primarily for generation of electric power or combined heat and electric power by the electric power sector.

• We suggest revisions be made to restrict to engineered landfills and separate these from regulation of or bans on use of ash in non-engi neered containment or fill. As proposed, the rule is trying to do too much in the defin ition for effectiveness, and banning non-landfill noncontained filling need to be dea lt with explicitly in the rule.

• The last sentence of the definition includes closed sites that are excavated and is vague. If the goal is to regulate landfill closed before the ru le is effective but excavate after the rule is effective, this should be dealt with in the app licability section of the rule, not in definition.

• Also, the last sentence explicitly applies regula tion to sites that are excavated “... so that more coal ash can be used as fill ...”, which begs the question of whether the rule applies to sites where ash is excavated for ash as fuel additive or for other use but the site is not going to be used for additional fill. This is better dealt with in an applicability section rather than in a

definition.

“CCR surface impoundment” includes ash settling ponds used in ash sluicing operations. This operation seems better defined as processing, if the CCR are removed after settling to disposal in

a landfill.

“Coal combustion residuals” means fly ash, bottom ash, boiler slag, and FGD destined for disposal. The definitions of fly ash and botto m ash imply combustion in a pulverized coal-type

furnace. This would seem to exclude other u tility furnace designs, such as fluidized bed, or forestall applicability to new furnace designs that don’t utilized pulverized coal.

“Independent registered professional engineer or hy drologist” needs revision if it is going to be a basis for the self-implementing RCRA Subtitle D alterative.

• The definition calls for expertise in groundwat er investigation, which is suitable for a hydrologist or hydrogeologist, but not enough on issues concerning an engineer, including competence in and knowledge of solid waste landfill design, operation, and closure, soil and geosynthetic materials used in landfill cons truction, and geotechnical aspects of soils, geosynthetics, solid wastes , and landfill operations.

• Add the title “hydrogeologist”, which in some Stat es is a professional who is more directly concerned with groundwater inv estigations and assessments.

• The word “independent” appears to be based on the phrase “who is not an employee of the owner or operator ...”. Simply being supposedly independent of direct employ by a utility is not sufficient. We have had experience with situations where an unqualified person or one lacking in geotechnical training or earthwork construction was hired solely to perform recordkeeping for construction documentation and was not able to provide the judgment needed to resolve technical questions. Some statement of demonstrated experience and training is needed for this definition to have any effectiveness for getting competent professional engineers assigned to or hired fo r CCR landfill design, construction, operation,

and closure.

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“Lateral expansion” leaves open the question of wh ether the rule applies to vertical expansions

constructed after the rule becomes effective. Most contiguous lateral expansions have some amount of overlap with previously approved fill areas, and some expansions are strictly vertical extensions of the previously approved fill area.

“Sand and gravel pit and/or quarry” is both t oo specific and too vague. It specifies commercial extraction of aggregate, which leaves out noncomme rcial extraction, such as gravel pits operated by municipalities, and also exclude metallic mi neral mines, nonmetallic mining for other than sand and gravel, and coal mines. If the point is to exclude non-engineered situations from being used for CCR disposal, this should be dealt with in an applicability section rather than attempting to ban certain disposal options by use of definition.

21. The discussion of landfill locational rest rictions on p . 35198 addresses the proposed

Subtitle D rule locational restrictions for wetlands , fault areas, or seismic impact zones. We

believe that States that have such restrictions in their rules also have provisions for exemptions or alternatives analyses.

We believe that the current population of CCR la ndfills in Wisconsin does comply with these locational criteria. We suggest that these loca tional criteria should be maintained, subject to review by State agencies and approval, approval with conditions, or alternative locations or designs, as need be. We also see no reason not to apply these locational criteria to surface impoundments.

22. The location requirements of placement within 2 feet of the top of the water table on p. 35199 of the preamble would prohibit new landfills and surface impoundments within 2 feet of natural water table. We object to this requi rement, as it would affect designs for zone of saturation landfills and gradient control systems, which utilities have successfully designed and operated in Wisconsin. .

Wisconsin rules (technical requirements in NR 504.06(4) and definition in NR 500.03(263), Wis. Adm. Code) allow the use of zone of saturati on landfills, which have a long history of use in high-clay soil environments in portions of the St ate. Both clay-lined and composite-lined landfill designs have been approved and successfully constr ucted and operated for many years. This is the sort of design that should not be banned b ecause they provide for efficient use of space and favorable hydrogeologic formations, in parts of th e State where landfill designs above the zone of saturation are not practical. This also an example where a Sub D approach is better, as our plan

review staff are familiar with both technical requirements and geological requirements for this type of design and can tailor our regu lations to individual site conditions.

We agree with the discussion on p. 35202 of the preamble that new CCR landfills or new cells of existing landfills should have to comply with lin er and leachate collection system requirements, while allowing existing landfills that are currently filling to continue to operate. We support the concept of putting a time limit on the continue d operation of surface impoundments that are not equipped with liners and leachate collection systems.

23. The discussion of liner requirements on p. 35202 - 35203 of the preamble assert that modeling demonstrated that only a composite lin er as specified in the rule would meet the groundwater compliance goals. We agree that a liner and leachate collection system are necessary for a landfill, and that the specified co mposite liner design is consistent with RCRA Sub D part 258 design requirements, under which Wisconsin in an authorized State. The manner

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in which the model was run does not convince us th at it has demonstrated that a thick compacted clay liner cannot also meet the groundwater co mpliance goals. See the discussion previously on this issue. We strongly support the rule including flexibility for an applicant to make a demonstration that an alternative liner design would also be acceptable. This might be a compacted clay liner, such as the four foot thick compacted clay liner in Wisconsin rules, but it might also be used by an applicant that choo ses to demonstrate the effectiveness of composite liners that include geosynthetic clay liners in c onjunction with soils that do not meet clay liner requirements. Other possibilities might also arise. Given the diversity of soils across the US and the potential for new geosynthetic or other products to be developed in the future, provisions need to included in the rule allow use if justified.

24. The groundwater monitoring/corrective action part of the proposed rule on pp. 35204 – 35207 of the preamble is generally consiste nt with Wisconsin groundwater monitoring requirements and is generally acceptable. We disagree with the proposal to not include the flexibility for States to establish alternative lists of indicator parameters for those States that have effective regulatory oversight of CCR landfills. Wisconsin, as did and other States provided justification for it’s regulatory program for groundwater monitoring in its application for authorization for the RCRA Sub D part 258 MSW landfill program. This justification should be sufficient for EPA’s proposed CCR rules as well.

The proposed lack of flexibility to acknowledge the effectiveness of State programs and Stateagency review functions is another example of why Wisconsin objects to the proposed selfimplementing alternative. We have alread y gone through a process for justifying our requirements for groundwater monitoring as part of our application for authorization for the RCRA Sub D part 258 MSW landfill program and see no reason why th is should not be adequate for regulating the groundwater monitoring requirements for CCR landfills.

Regarding the request on p. 35205 of the preamble on certification of groundwater monitoring data, we support a requirement for the landfill owner or a designated responsible employee to certify that the data are accurate and the use of testing laboratories that meet lab certification requirements. Our experience is that the landfill owner may contract with a firm that performs sampling, but can also perform sampling using its own employees. The entity performing the analysis of water samples may be a contract la b that has no connection to the sampling work. The owner is in a position to verify that all pa rties were competent and performed their tasks correctly. A contract engineer or hydrologist or hydrogeologist may not be sufficiently involved with the details of both field work for sampling and the laboratory QA/CC and analyses.

Regarding the request on p. 35206 of the preamble for comment on lack of provision to suspension of groundwater monitoring, we agree that there is a potential for abu se if there is lack of State agency oversight. However, we object to not allowing this flexibility for State agencies that have effective solid waste regulatory aut hority over CCR landfills a nd which have a history of groundwater monitoring authority a nd data submission a nd retention.

As commented on other aspects of monitoring on p. 35206 of the preamble, in the section requiring a minimum of one upgradient and 3 downg radient wells, for States that have effective groundwater monitoring rules and a history of collecting and archiving data, we object to a requirement that only an independent PE or hydr ologist to can decide if a more detailed monitoring system is needed. In all instances in Wisconsin for engineered landfills, whether for CCRs or other wastes, considerably more groundw ater instrumentation is needed than the minimums in the proposed rule, and direct involvement in the review of proposed monitoring programs by State agency staff is essential. Given the costs of installing and monitoring

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groundwater monitoring networks, we believe that State agency input is needed to assure an adequate monitoring system is installed around a CCR landfill.

Regarding the request on p. 35206 - 35207 of the preamble for comment on detection monitoring, Wisconsin rules include the use of field parameters pH, field conductivity, field temperature, and groundwater elevation, which we recommend be adde d to the proposed detection parameter list.

Regarding the request on pp. 3520 6 - 35207 under assessment monito ring, we object to the lack of authority for State agencies to approve an altern ative list of indicator parameters, for States that have effective groundwater monitoring authority an d rules and that have a demonstrable history of collecting and archiving groundwater monitoring data. We object to a requirement that only an independent PE or hydrologist to can decide if an alternative list of detection parameters is acceptable.

We have similar concerns with the proposed requirement s for groundwater assessment monitoring. The list of parameters may be su itable in general terms, but there should be flexibility for State agencies to require use of other parameters if site-specific waste characterization indicates that parameters not on the proposed list would be useful for defining contamination patterns caused by the waste. As with previous comments, we believe that States that have effective groundwater monitoring auth ority and rules and that have a demonstrable history of collecting and archiving groundwater monitoring data should be allowed to review proposals for alternative assessment monitoring parameters.

Regarding the discussion on p. 35207 of the prea mble about corrective actions required in 90 days and the 3 year time period for implemen tation of a remedy, the generic time periods proposed may be sufficient in a number of cas es, but a complex situation may well require

additional time. We believe that States that have effective groundwater monitoring authority and rules and that have a demonstrable history of collecting and archiving groundwater monitoring data should be allowed to review proposals for a long er time period, if technically justified. We object to a requirement that only an independent PE or hydrologist to can decide if a longer time period is justified.

25 . The final cover design requirements on pp. 35208 – 35210 of the preamble, propose using the Part 258 MSW landfill design requirement s as a general model. In general, we agree with this approach. Comments are:

The proposed ruled does not specifically include a geomembrane to make a composite cap, but includes a requirement that the cap permeability be no greater than that of the bottom liner system. The proposed design may be sufficient for closure of an existing CCR landfill or impoundment that lacks a previously approved closure plan and design.

The requirement that the cap permeability be no greater than that of the bottom liner system seems to mean that a new landfill or impoundment would have to have a composite cap, including clay soil and geomembrane. This is compatible with current Wisconsin regulations MSW landfill regulations, which require a compos ite liner and composite capping layer. The final rule should be specific about this issue.

The discussion of alternative final cover designs on p. 35209, states that justification is required but doe not acknowledge plan review by State agenci es. The rule leaves deci sions to a registered P.E. to decide what is appropriate. For reasons noted elsewhere, this is not sufficient without review and input by environmental agency staff. Note also that in the RCRA Sub D part 258

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MSW landfill rules, such alternative covers ar e subject to a Research, Demonstration and Development (RD&D) permitting actio n by authorized States, for the purpose of demonstrating whether such covers actually work. The RD&D perm its limit use of alternative covers to 3 year time periods and a 12 year total, with the requi rement that data and record be produced to

document whether the alternative cover meets stated goals. It is premature to assume the utility of such final cover designs for the RCRA Sub D part 257 rule for CCR landfills when States and EPA have yet to make such decisions for RCRA Sub D part 258 MSW landfills. Our suggestion is that alternative final covers, such as evapotra nspiration covers or wate r balance covers, only be allowed in the context of an existing RD&D permitting action for the limited time periods and the reporting requirements required in 40 CFR 258 for MSW landfills, in States that have received RD&D permit authority under 40 CFR 258.

The discussion of deadlines for starting and completing closure on p. 35209 of the preamble proposes to not allow provisions for extending dead lines, based on an absence of state authority and a potential for abuse if a site owner made its own decisions about necessary time for completion. We agree with the need to establish deadlines for closure work, but we believe that it is also essential for a review mechanism for proposals for longer closure periods. Our experience is that weather and climate have significant e ffects on the time needed to properly construct a final cover system, and that delays due to weather are usually justifiable. A set time period for closure without provision for review of extensions ignores the practical difficulties involved in stabilizing weak wastes or of completing cap if closur e starts before cold or rainy weather sets in.

The proposal for allowing CCR landfill owners to lengthen or shorten the post-closure care period, on p. 35209 of the preamble, includes a notif ication of state and inclusion in record and a request for comment on alternative methods that assure accountability. It is unrealistic to expect any owner to voluntarily extend the post-closure care period, and it is unacceptable for owners to decide for themselves to shorten it, without a formal review by regulatory agencies, either the States or EPA. This provision should either be dropped or be allowed only in the context of a review and approval mechanism by State regulatory agencies. The same should be applied to the suggestion for the provisions to increase flexibility , specifically allowing owners to self-certify the stoppage of leachate collection and other routin e care items or to cease repairing disturbances

of the final cover.

Note that Wisconsin statutes set a minimum 40 year post-closure care period for all licensed landfills, including CCR landfills. This should not be allowed to be truncated by the proposed

rule.

26. The discussion on financial assurance on p. 35210 states that the proposed rule does not include financial assurance requirements in the Sub D alternative, and is depending on separate rule-making for adding responsibility require ments under CERCLA 108(b). We do not support the concept that financial responsibility unde r CERCLA should be “a key agency focus” under the Sub D alternative. Wisconsin, and likely many other States, already has requirements for financial responsibility for closure and long-term care that apply to CCR landfills. The proposed rule should be revised to acknowledge existing state financial responsibility requirements for CCR disposal facilities allow States with such pr ograms to regulate financial responsibility plans for CCR landfills, and take advantage of the financial responsibility rules already authorized

under the 40 CFR 258 rules.

27. Section XI on p. 35211 of the preamble, entitled Impact of Sub D alternative on State programs, states that the proposed rule has no effect on state rules. It also states that CCR landfill

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owners would have to comply with all elemen ts of the self-implementing proposed RCRA Sub D CCR rules, more or less regardless of the content of State rules. We believe that it is essential that the proposed rule recognize that State ru les will apply to CCR landfills and to include a provision that States can approve CCR landfill with features that differ from the proposed rule requirements. As noted in several sections above , there are aspects of the proposed rule that may be less stringent than State rules or which address variations in engineering design or materials, climatic factors, or geologic situations that the proposed rule does not address or is in contradiction with modern technical or geotechnical practice. It is essential that State rules andreview actions be allowed to modify requirements in the proposed RCRA Sub D selfimplementing rule, to address technical judgment a nd to incorporate technical advances that the rule does not anticipate.

28 . We have reservations about the proposed rule alternatives on pp 35220 - 35221 of the preamble. Our comments are: With rega rd to treating wet-handled CCR in surface impoundments under Subtitle C and dry-handled CCR in landfilll under Sub D, we see no advantages over the proposed RCRA Sub C or D ap proaches. There still has to be a means for the self-implementing RCRA Sub D part 257 rules to be reconciled with technical decision made by State agencies under their own authority.

With regard to regulation under Subtitle C excep t in states that developed enforceable Sub D rules for CCR disposal, this concept is compar able to MSWLF rules and is acceptable, as it acknowledges State rules and allows for the flex ibility that the proposed RCRA Subtitle D selfimplementing rule does not. The allowable time frames may be acceptable if the EPA Regions can perform the necessary reviews of State rules on schedule. As with the authorization actions for the State programs for the RCRA Subtitle D part 258 MSW landfill rules, notices of draft and final decisions likely would have to be placed in the Federal Register and allow for public comment, which might lead to delays and necessity for modification of the time frames.

It would be better to drop the RCRA Subtitle C alternative altogether and simple establish a time frame in which States would have to prepare a nd submit RCRA Subtitle D part 257 applications for authorization, meeting certain requirements that could be listed in the rule. The example of the RCRA Subtitle D part 258 MSW landfill rules is in structive. Eventually, all States applied to their respective EPA Regions for authorization an d received it. States were able to deal with more stringent requirements, local climate a nd geology, alternative design and construction issues, and other issues to their satisfaction and still achieve compliance with federally proposed minimums. This would minimize the disruption to State agencies in terms of budgets and staff assignments and maintain CCR landfill regulation within solid waste program structures.

This approach also establishes a model for future rule-making if EPA decides that it needs to establish requirements consistent across the States for other non-MSW waste types. For instance, EPA may decide that it is necessary for rules for CCR wastes generated entities that are not utilities and that do not run facilities only for power or combined heat and power. Another example is ash from powerplants that utilize biomass or recovered wood from landscaping or construction and demolition sources, rather than coal ash. Others might be foundry waste, aluminum dross, other manufacturing wastes, pollution control sludges such as from pulp and papermill, petrochemical wastes, etc. If EPA had an acceptable model for regulation of all-nonMSW waste types, it would allow industry time to anticipate regulatory requirements or change operational practices or feedstocks.

With regard to the cement kiln dust (CKD) model alternative, this would appear to generate considerable legal challenge if a generator were threatened with waste being reclassified as a

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hazardous or special waste subject to RCRA Sub C regulation. In terms of the detailed management standards under RCRA Sub D, they woul d still have to be proposed in some level of detail, and we would prefer the use of th e RCRA Sub D part 258 MSW landfill example.

An alternative that should be considered is th e TSCA coordinated approval process in s. 761.77 of TSCA. As applied to CCR wastes, State agencies could be required take the lead in performing plan review. An applicant would ha ve to make a simultaneous application to the State and the EPA Region. If EPA published a mi nimum set of information and design items that an application ought to contain, owners of CCR landfills would know what they would have to apply for, considering both State and Federal requi rements. The State agency would take the lead in drafting an approval, with the EPA Region revi ewing for consistency with its own concerns. This would allow the State agency to address issues such as have been referred to above, such as climate and geological features or specific landfill design or construction materials that may be new or unique and not specifically addressed in eith er agency’s rules. Wh en both agencies issue approvals, the CCR landfill operator would have to comply with both, EPA would have a basis for direct regulation, but would be able to utilize the States to do most or all of the regulatory oversight that EPA is proposing could be accomplished by the proposed RCRA Sub C alternative.

We are aware that some States that do not have formal rules for non-MSW landfills still regulate such sites and require the protective aspects th at MSW landfills are subject to. A coordinated approval process should be compatible with State ag ency review, regardless of the specific source of their authority, as long as the goals of regulation are achieved.

29. Section XIV, p. 35224 of the preamble, s ubheading “State Programs”, requests feedback on current State regulatory approaches to CCR and any potential for the proposed federal regulations to cause disruption of State implemen tation of CCR regulation under State authority. Previous comments have pointed aspects of the pr oposed rules that have potential to disrupt implementation of Wisconsin rules and authority, including provisions for zone of saturation liner designs, gradient control system designs, and use of non-standard construction material such as geosynthetic clay liners. Subsequent sections al so point out the major disruption that will occur with Wisconsin’s beneficial use program. Rule writing to implement the Subtitle C option will in and of itself cause major, unnecessary workload an d disruption due to diversion of staff and

resources to hazardous waste rule revisions.

Much of what Wisconsin rules require for CCR landfills is contained in the request for authorization for the RCRA Sub D part 258 MSW landfill rules, on file in EPA Region 5 offices. Wisconsin statutes and rules can be obtained efficiently from the following links, which are also accessed by Region 5:

• Chapter 289, Stats., Solid Waste Facilities: http://www.legis.state.wi.us/statutes/Stat0289.pdf

• Chapters NR 500 to 520, Wis. Adm Code, in particular NR 500, 504, 506, 507 to 516, and

520: http://www.legis.state.wi.us/rsb/code/nr/nr500.html

• Other information can be obtained from the Waste & Materials Management Program web

page: http://dnr.wi.gov/org/aw/wm/index.htm

In brief, Wisconsin solid waste rules and statutes define a multi-step siting process that applies to all licensed landfills, include facilities for MSW, utility ash, and other industrial and non-MSW wastes. Most of the siting process and detailed specifics in the rules apply to all landfills, regardless of ownership or waste type. The feasi bility report process laid out in ss. 289.21 to 289.29, Stats., and ch. NR 512, Wis. Adm. Code , includes provisions for environmental impact analysis, public comment, and request for pub lic hearing. Detailed design, construction, operation, and closure requirements are contained in NR 504, 506, 514, and 516, Wis. Adm.

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Code. Environmental monitoring and investigati on of groundwater standards violations are in NR 507 and 508, Wis. Adm. Code. Financial r esponsibility requirements in contained in s. 289.41, Stats., and NR 520, Wis. Adm. Code.

WDNR has been regulating CCR landfills since the program started in the early 1970’s and has imposed engineered landfill standard s through rule and practice sin ce the late 1970’s. The siting process has been in effect since 1979, as articulat ed in predecessor codes to the NR 500 codes and a predecessor statute to ch. 289, Stats., which also initiated financial responsibility requirements. CCR landfills have been regulated under the same process as MSW landfills. Wisconsin MSW landfill requirements differ from the proposed CCR landfill requirements in certain design requirements, chiefly in that NR 504.06, Wis. Adm. Code requires a minimum 4 foot clay liner rather than the MSW landfill composite liner requi rement of 4 feet of clay and a 60 mil HDPE geomembrane, and NR 504.07, Wis. Adm. Code re quires a multilayered final cover with a 2 foot compacted clay barrier layer. CCR landfill owners can but are not required to use composite liners and composite capping layers under current rules.

Wisconsin solid waste (NR 500 series) rules are already nearly fully compliant with the technical details in the proposed rules for landfills. Any diffe rences can be dealt with in short order by use of our codified plan review and approval process. Our solid waste disposal rules do not address surface impoundments, but any facility that might be considered a surface impoundment can be addressed by our general authority for processing fa cility rules. Feedback from the Wisconsin utility industry indicates that any facilities that might be considered surface impoundments will

be taken out of service in the near future.

Based on the technical details in the proposed ru les, we could incorporate any necessary changes into our existing rules, including any language regarding surface impoundments. However, we anticipate that the level of effort to modify our hazardous waste rules (NR 600 series) would entail considerably more workload than that n eeded to modify our solid waste rules (NR 500 series).

We anticipate that staff training and plan revi ew workload with a RCRA Subtitle D alternative can be readily integrated into our existing sta ffing and management. Ex isting staff would need considerably more training to implement the procedural elements and specific details of the RCRA Subtitle C proposed rules. The WDNR W aste & Materials Management program has an experienced set of 18 engineers and hydrogeologis ts, as well as several plan review experts and supervisors, to regulate 70 existing active landf ills, including 11 CCR landfills. We do not have enough hazardous waste engineers and hydrogeologi sts to take on the CCR landfill work, so we would expect that solid waste staff would have to continue to be involved in such activities.

WDNR staff have the technical capabilities and experience to effectively regulate CCR landfill under State rules. The technical requirements of either the RCRA Subtitle C or Subtitle D approaches are well within their cap ability. However, the additional procedural requirements in

the RCRA Subtitle C rule alternative would co nsume additional time and resources that are currently already stretched.

EPA could mitigate difficulties imposed by the propo sed rules by seeking and obtaining authority to use an authorization process su ch as was used for the Part 258 MSW landfill rules, or to develop rules that utilize a coordinated approval proc ess. Either approach would be able to take advantage of resources that exist at the State ag encies, including experienced staff, knowledge of the existing utility CCR disposal facilities and CCR generating facilities, an established review and permitting process, experience with facility design, familiarity with earthwork construction

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WDNR Comments

and materials commonly used in landfills, unique or modern construction materials such as geosynthetic clay liners, and local geology and hydrogeology.

30. Stigma Effects – WDNR believes the stigma issue is real and we have received numerous examples where businesses have expressed concern over CCR being regulated under Subtitle C of RCRA as a special waste. These cases range from parties indicating they will no longer use CCR to cases where they may use them in the future, but only after liability issues are clarified. In some cases, it has taken years of effort working with businesses and utilities to develop these business relationships. WDNR is very con cerned that once businesses no longer use CCR materials, it will be a difficult task to bring them back to using CCR. In the meantime, while CCR are not being beneficially used, there will be increases volumes disposed of into landfills, increased costs to utilities and their ratepayers, hi gher energy use to prepare and transport more virgin products, etc., all of which will result in more greenhouse gas emissions. Wisconsin’s beneficial use program has resulted in over 10 million cubic yards of CCR being used which has resulted in significant savings of other materials. Limitations on CCR use if subject to Subtitle C waste regulation include:

• Use of CCR material would not be allowed as an unconfined geotechnical fill or as a soil amendment. If these uses no longer existed (and th ey could be removed until such time that a

federal determination could be made that these are legitimate uses), there would be significant limits on the use of these materials, stigma or not. The final rules should clarify these uses and state these can be conducted to remove the stigma.

• Use in products may be limited. For instance, wallboard is a significant market for CCR. Manufacturers will likely not continue to us e CCR classified as hazardous waste in the manufacturing of material that will be used in residential markets.

• Our own Ch. NR 538 beneficial use regulations does not allow for beneficial use of industrial by products that are hazardous waste (s. NR 538.02).

• Liability concerns must be addressed. Contract s issued by Wisconsin utilities are written with

a non-hazardous waste or hazardous material clause.

EPA will receive numerous examples showing the stigma effect is real in response to the public comment period. Consequently, WDNR is not submitting a list. Examples of projects where stigma has been a factor include:

• Exclusion of the use of fly ash from concrete at a dam construction project.

• Not using fly ash for soil stabilization

• Not using fly ash in ready mix concrete

• Not using FGD gypsum as a soil amendment

• Not using fly ash in wall board manufacturing.

31. Damage Cases – This discussion provides EPA with a dditional information on Wisconsin’s potential and confirmed damage cases from the di sposal coal combustion residuals (CCR). EPA has requested additional information on potential a nd confirmed damage cases from the disposal of CCR. While it is impractical to compile a complete summary of all the 22 licensed CCR disposal sites (closed and active) known to ex ist in Wisconsin to provide comments on the proposed rule, we are including a copy of a repo rt prepared in 2004 for the National Research Council’s study of managing coal combustion r esidues in mines titled “Groundwater Impacts From Coal Combustion Ash Disposal Sites in Wisconsin” (Section D of this appendix). The report includes a brief summary of some of the groundwater quality data available in our files for CCR disposal sites as well as an in-depth summary of two well-known damage cases.

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WDNR Comments

From WDNR review of the environmental data from these disposal sites we readily acknowledge

that improper management of CCR wastes can resu lt in adverse environmental impacts especially to vulnerable groundwater resources. Our review of environmental performance data also indicates the following:

• From the standpoint of groundwater impacts, th e worse offenders were the historic, closed coal ash sluicing disposal sites. There are many possible reasons for this, but most importantly is the fact that all these sites were unlined, many were sited in old sand / gravel pits or quarries, wet disposal resulting in a natural hydraulic head that can drive the contaminants into the underlying aquifer, and the use of high-sulfur eastern and Illinois Basin

coals. Wisconsin utilities all converted to dr y handling systems in the mid-1980’s along with a switch to burning mostly low-sulfur coal from the Powder River Basin.

• There are groundwater standard exceedances present in all Wisconsin CCR landfills, both active and closed, but the exceedances in the older, unlined landfills are, generally, an order of magnitude greater than at active, engineered disposal sites.

• The best indicators of groundwater impacts from CCR disposal were boron, sulfate, arsenic and selenium. Please note that the number presented in Table 2 of the report are the most conservative numbers available and represent the highest detects from the most contaminated well ate each site, many times a well completed within the waste mass.

In WDNR’s experience, installation of a geo-me mbrane cap is an effective method to reduce groundwater contaminant levels by reducing or eliminating water infiltration through the coal ash waste. Minimum design standards for CCR dispo sal sites should focus as much on the final cover system as it does on the liner systems

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WDNR Comments

Appendix – Section C

Detailed comments and information on beneficial use and Wisconsin’s beneficial use

program.

Beneficial Use of CCR Materials

– Wisconsin’s successful, nationally recognized program has resulted in Wisconsin utilities beneficially usi ng up to 85% of CCR each year, with some utilities exceeding 90% use. WDNR believes that most C CR materials can be beneficially used. For example, FGD materials are used in wall board, cement manufacturing, a nd in concrete products. In addition, coal bottom ash is successfully used as geo-technical fill material in road construction. Approximately 10.4 million cubic ya rds of CCR materials have been beneficially used since Wisconsin’s beneficial use program was created in 1997; the equivalent of 3—4 landfills. The high level of reuse in Wisconsin greatly decreases the need for disposal, saves on landfill space, reduces need for virgin products , and reduces greenhouse gas production, while protecting public health and the environment. WDNR would like to see this high level of CCR

use continue.

If the proposed rule were to pass with Subtitle C of CCR, beneficial use in Wisconsin will drop significantly if not altogether. If the rule were passed under Subtitle D, we believe there may be a drop in areas where CCR material is beneficially used as geotechnical fill material and where

there is direct contact with the soil. Under Sub title D regulation, use as a product ingredient will likely continue.

Wisconsin has had a formal process for permitting the beneficial use of industrial byproducts, including CCR, since the promulgation of the ch. NR 538 Wis. Adm. Code rules on December 1, 1997. This program has been very successful be cause it ensures environmental protection while avoiding unduly burdensome regulatory oversight. We hope that by sharing our experiences with developing and implementing these rules, WDNR can offer EPA valuable real-world examples of an effective regulatory framework for the beneficial use of CCR.

Ch. NR 538, Wisconsin Administrative Code, w as developed by WDNR over a 2 year period with extensive input by a Technical Advisory Committee (TAC) comprised of representatives of all the groups most directly impacted by the pr oposed rule, including industries, academia and environmental groups as well as an extended public comment period. From this process, it was clear that, in order to be effective at enc ouraging beneficial uses and diverting industrial byproducts from landfilling, the resulting regulati ons had to not only protect the public and the environment, but must set clear standards for permissible uses, be flexible and establish a streamlined regulatory approval process.

For this reason, the resulting approval process fo r the beneficial use of CCR in Wisconsin is largely self-implementing. Genera tors of CCR (Wisconsin law does not differentiate between industrial and utility generators) wi shing to participate in the beneficial use program must first

submit an Initial Certification with the WDNR. This certification consists of some basic information concerning the material and the gene rator but, most importantly, test results to characterize the chemical properties of the CCR material.

The WDNR realized early on that chemical and phys ical properties vary significantly in the wide array of industrial byproducts and this variety was too great to effectively regulate by simply assigning an industrial byproduct to a general class of material. For instance CCR or coal ash can be subdivided into fly ash, bottom ash, slag, and flue gas desulfurization (FGD) material. But

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WDNR Comments

even within these subdivisions, the potential variety can be great, not only between power plants

but even between individual boiler units. Fo r example, fly ash can vary depending on coal source, combustion method and air emission controls. Mixtures of these materials can further complicate matters. For this reason WDNR chose to set a series of 5 beneficial use categories set on the specific chemical properties of each byproduct regardless of the particulars of their generation.

Industrial byproducts are assigned a category from 1 (least restrictive) to 5 (most restrictive) based on the analytical test data submitted to the WDNR during the initial certification process. Since Category 1 and 2 materials have permitted uses that could have the potential for direct contact concerns (through inhalation and ingesti on), byproducts in these categories must undergo a total elemental analysis (in accordance with EPA SW-846) and compare the test results with the permissible limits in s. NR 538.22, Appendix I, Wi s. Adm. Code. These limits were developed from the WDNR’s ch. NR 720 (Soil Cleanup Standard s) standards for direct contact. Examples of permitted Category 1 and 2 uses include road su rface courses, decorative stone or cold weather

road abrasives.

Since the potential for groundwater contamination is of great concern, all categories of material must also be subject to a water leaching test in accordance with ASTM D3987. The

concentrations of the contaminants that leach out of the byproducts in the water leach test are then compared to the limits specified in s. NR 538. 22 Appendix I of the Wis. Adm. Code to assign them to an appropriate category. The limits in the Code were set at certain percentages of the groundwater Enforcement Standards (ES) containe d in ch. NR 140, Wis. Adm. Code, for the protection of groundwater resources (similar to the federal maximum contaminant levels (MCLs)). Byproducts that have the potential to leach contaminants in ex ceedance of these limits are assigned to a higher category (3 through 5) and are restricted in their potential uses. Higher category uses include confined (covered by an impermeable cap) fill, encapsulated in a product (i.e. cement, asphalt, brick), or da ily cover in a Subtitle D landfill.

In practice, this rule allows the majority of CCR to be used with only annual reporting of quantities and their uses to the WDNR and occasion al re-characterization of the byproducts as described in s. NR 538.06(4) Wis. Adm. Code. The majority of CCR material use falls under the s. NR 538.10(1) Wis. Adm. Code exemption for ma terial that is used as raw material for the manufacturing of a product in which the measurable leaching emissions or decomposition characteristics of the material are substantially e liminated. This exemption covers such uses as fly ash use in cement and concrete products, bottom ash/slag in asphalt or roofing and FGD gypsum in drywall (also referred to in federal rules as “encapsulated” uses).

In contrast, all CCR used for unconfined (only covered by 2 feet of soil) geotechnical fill projects and confined (fill that is covered by an impe rvious surface such as concrete or asphalt) geotechnical fill projects exceeding 5,000 cubic yard s require concurrence by the WDNR prior to commencement of the project. Since it is a concu rrence and not a formal approval, the process of

review is streamlined and automatic if not acted on within 10 business days. Except in some very specific geotechnical applications, fly ash and FGD gypsum is not generally suitable for fill material although bottom ash/slag is commonly used for fill projects. Since fly ash typically tests out as a Category 4 material, its use is limited to certain confined fill projects. Bottom ash/slag typically tests out as a Category 2 material (not as leachable or reactive as fly ash) it can be used for both confined and unconfined uses although it also has value as use as a surface course for

roads or as a cold-weather abrasive.

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WDNR Comments

This regulatory framework has been remarkably successful in promoting the beneficial use of CCRs in the State of Wisconsin. In the year 2000, just 3 years after its implementation, a study performed by the WDNR showed that 1,425,140 to ns of coal ash byproducts were generated in the State of Wisconsin. Of that total, 1,157,153 tons, or 81 percent, of the total was beneficially used in some manner under ch. NR 538 Wis. Adm. Code. An informal polling of Wisconsin utilities in 2006, indicates that those beneficial use numbers are being maintained with approximately 1,131,000 tons of CCR material being generate d and 974,000 tons (86 percent) being beneficially used. Of that total, approximately 21 percent co nsisted of bottom ash/slag with the remainder being fly ash. WE Energies, the la rgest electric utility in Wisconsin, actually has reported more byproduct being bene ficially used than material being generated due to reburning of coal ash from historic disposal sites.

While successful, these rules have not been without problems and future actions will certainly test the limits of their effectiveness. Wisconsin’s beneficial use rules were initially promulgated to streamline a series of case-specific approvals ma de in the past with a set of very familiar materials. In addition to papermill sludge and foundry sand (both also covered under the ch. NR 538 Wis. Adm. Code rules), CCR were restricted to Class C and Class F fly ash, bottom ash and slag, mostly segregated and handled dry. The practice of wet sluicing mixed ash into disposal ponds was discontinued in Wisconsin in the mi d-1980s when utilities switch to western coal sources. The next generation of air pollution control devices has changed that simple,

comfortable formula with the addition of ne w CCRs that the WDNR has, until now, only had limited experience.

The first new air pollution control byproduct proposed for beneficial use was FGD gypsum generated by WE Energies at their Pleasant Prairie power plant. By means of a forced oxidation step, WE Energies was able to produce a relativ ely pure gypsum byproduct. Since there was a ready market for the material at a drywall manuf acturer in Chicago, the use was not hard to accommodate under ch. NR 538 rules. WE Energies later applied to the WDNR to approve the use of FGD gypsum as an agricultural soil ame ndment. Comparative studies showed that the FGD gypsum did compare favorably with mined gypsum already sold as a soil amendment with one exception. A small fraction of the FGD gyps um, fines removed at the water treatment filter press, contained mercury concentrations in excess of the federal 40 CFR 503 landspreading concentration limits (17 ppm). The agricultura l use of FGD gypsum was approved (without the filtercake) in a low-hazard approval outside of ch . NR 538 authority. Other possible future uses proposed for FGD gypsum, such as animal bedding, will likely also be beyond the ability of ch. NR 538 codes to effectively evaluate.

Of greater concern is the generation of a new cl ass of coal byproducts sometimes referred to as spray dryer ash (SDA) and other new mixtures of ash and emissions control byproducts. To meet the new Clean Air Act standards coming into e ffect in 2011, We Energies has updated most of it’s plants using the wet scrubbing method, thereby preserving the generation of Class C fly ash (suitable for cement additive) and FGD gypsum. However, the other Wisconsin utilities have chosen to pursue dry scrubbing methods that result in the production of a mixture of fly ash and calcium sulfide known as SDA. Our limited experien ce with this material indicates that it is not

suitable for cement or concrete additive and we ha ve concerns about its appropriateness as a fill material given its very fine nature and reactivity with water when hydrated. We have little information on its potential environmental impacts. We need far more detailed analysis of these byproducts, along with other possible additives (i .e. carbon for mercury capture or ammonia as a result of NOX capture) to the ash to determine appropriate potential reuse options. Even the

current rush to utilize biofuels could cause seri ous problems with characterizing the suitability of ash byproduct materials for beneficial uses given that the ash may vary daily depending on the

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WDNR Comments

fuel source (esp. if it includes such things as C& D waste, railroad ties, or other treated wood wastes).

On a related note, WDNR sincerely appreciate EPA ’s recent efforts to develop CCR leach testing methodologies under the Leaching Environmental Assessment Framework (LEAF). It is our understanding that these improved testing methodolog ies, which can provide more accurate CCR leaching information under a variety of field conditions, will be incorporated into SW-846 very soon. WDNR fully intends to review this resource and possibly incorporate these methodologies into our beneficial use codes regardless of the outcome of this proposed rule.

Potential Impacts to Wisconsin’s Beneficial Use Program - Obviously, the potential impacts to the beneficial use program will vary considerab ly depending on the final federal rule adopted. From a programmatic perspective, regula ting CCR under RCRA Subtitle C would mean an extensive rewrite of both our ch NR 500 solid waste management series and our ch. NR 600 hazardous waste management series of codes. This would involve a multi-year effort resulting in significant expenditure of staff time and resources in an era of severe State budget shortfalls and staffing limitations. Regulation of CCR under a S ubtitle D would involve much less restructuring of administrative codes since regulation would s till defer to State statutes and the ch. NR 600 series of codes would not have to be modified. Revisions would likely be limited to some new restrictions on use and testing in s. NR 538 Wis. Adm. Code and some changes to WDNR’s

landfill construction standards in s. NR 504, Wis. Adm. Code.

In spite of EPA’s stated position th at the proposed rule is not intend ed to affect existing beneficial uses, implementation of the RCRA Subtitle C opt ion would result in a number of significant changes in our beneficial use program, some known and others more uncertain. Listed below are some known and suspected impacts:

• Some acceptable uses under s. NR 538 would be r estricted or banned, especially uses of CCR for geotechnical fill applications. At least one quarry reclamation project (D&J Quarry) will be impacted under either rule. Other fill pr ojects would likely fail the “use constituting disposal” definition in the hazar dous waste rules even if they are confined under roadways or buildings.

• Part 261.4 of the proposed rules states that CCR placed “in excessive quantities, placed as fill in sand and gravel pits or used in large scale fill projects” are not considered beneficial uses. This proposed standard is too vague to be prac tically enforced. Without further definition of this standard, the WDNR would likely be forced to deny any potential beneficial use projects in sand and gravel pits (even small scale projects) or be subject to lawsuits over what exactly constitutes an “excessive quantity” or a “large scale project”.

• It is very likely the widely used beneficial use of CCR for alternate daily cover (ADC) at MSW landfills would be eliminated due to restrictions on acceptance of hazardous waste at MSW landfills and liability concerns from the private operators that their operations may be reclassified as “co-disposal” sites. Wiscons in considers the use of CCR as ADC a beneficial use since it negates the need of a la ndfill to excavate virgin materials.

• The rule would also severely curtail or elimin ate the widespread use in Wisconsin of coal bottom ash and slag as cold-weather abrasives and surface courses on roadways. Townships and counties would not expose themselves to the possibility of being accused of exceeding the reportable quantity (RQ) of 1,294 pounds wh en CCR material is spread on roads after a snow event or applied to a roadway. They also would not be in a position to comply with all the reporting requirements under RCRA Subtitle C for bottom ash stockpiled at road maintenance yards in anticipation of winter application or spring road resurfacing.

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WDNR Comments

• The prohibition on placement of CCR below the natural water table may also impact the use of bottom ash as dam sealant, a small but very important use of bottom ash in Wisconsin. Small amounts of bottom ash are placed in the water upstream of dam gates to seal them in the fall and prevent ice damage over the winter. Coal bottom ash is uniquely configured to plug the gaps around dam gates while allowing the gates to be opened when needed, and the WDNR has determined that this important function outweighs any slight potential environmental impact to the water body.

Note that most of these potential beneficial uses re late to coal bottom ash and slag. This further demonstrates the danger of lumping all types of CCR into one category, regardless of their individual physical or chemical properties. Coal bottom ash and slag is typically a Category 2

material under our ch. NR 538 Wis. Adm. Code standards (low levels of leachable compounds) while fly ash and FGD is typically Category 4 (higher levels of leachable compounds and far more restricted use potential).

Another drawback to lumping all CCR material in tone category is that it removes any incentives for the producer to change their process to produ ce a less leachable byproduct. By characterizing each material separately and increasing the potential reuse options as the leachability of the material decreases, the ch. NR 538 rules create a strong incentive with known benchmarks for the producer to create a more environmentally benign byproduct.

WDNR would also note that the EPA’s own tes ting (EPA-600/R-9/151, December, 2009) further reinforces the idea that CCR can vary considerab ly depending on a variety of factors including coal sources, boiler configurations , and emission control features. From our view, this reinforces the idea that CCR should be evaluated individually fo r their suitability for certain beneficial uses and not lumped into broad regulatory categories, as is suggested in this proposed rule. It also raises the possibility that CCR from industrial bo ilers could pose as great or greater potential environmental threat as CCR generated from coal-fired electric utility boilers, making the distinction between the two sources in the proposed rule seem arbitrary and difficult to enforce or defend to the public.

As stated before, our program has resulted in about 10.4 million c ubic yards (equivalent to 3 or 4 landfills) of CCR material being beneficially used . This CCR material was used in a manner this is protective of human health and the environment. Consequently, the WDNR would like to make the following observations related to the proposed regulations re lated to CCR material

beneficial use:

 The regulations should clearly define how CCR can be beneficially used. As proposed, the draft rules do not appear to allow their use to the extent we allow in Wisconsin. For instance, they would allow it in a product as a replacement of a virgin material in a manufacturing process (encapsulated use, such as wallboard or cement), but not in a manner where the

material would be used in direct contact w ith the ground (unencapsulated use, such as geotechnical fill or soil amendment). Again, some manufacturers will not use a CCR material

that has been classified as hazar dous waste in their product(s).

 The beneficial use market for bottom ash would be mostly eliminated under Sub C approach. The crux of the problem is that the Wisconsin definition of beneficial use and the proposed federal definition are very different. Using bottom ash for fill, even under roadways (as is currently being done in large quan tities on the I-94 expansion in SE WI) would be

banned under the federal definition as a "use constituting disposal".

 The regulatory burden of transporting, stor ing and documenting coal ash as a hazardous waste would guarantee that smaller users would reject using the material (even the DOT would balk at the regulatory burden when it is easier and cheaper to obtain mined rock).

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WDNR Comments

29  The final regulations need to provide the incen tives to encourage the beneficial uses of CCR.

This should be done to:

• Encourage the use these materials as substitutes for virgin products or feedstock, and

• As new air pollution control requirements are established, motivate utilities to develop and utilize technologies that will continue to generate high quality CCR material with good beneficial use properties while minimizing the volume of heavily contaminated CCR material generated. If CCR is hazardous waste, there will be no incentive to further waste volume reduction technologies.

## Appendix – Section D

G ROUNDWATER 

## I MPACTS FROM 

## C OAL 

## C OMBUSTION 

## A SH


## D ISPOSAL 

## S ITES IN 

## W ISCONSIN



### Written by Michael Zillmer 1 

### and Philip Fauble 2



### Introduction

The State of Wisconsin’s Department of Na tural Resources (WDNR) regulates both coalpowered electric generating plants and the corresponding ash disposal sites. These sites range from active, engineered landfills to closed, unlined disposal sites located in abandoned bedrock quarries, wetlands, and sa nd & gravel pits. The disposal of coal combustion by-products (CCB) in unlined sites was only an accepted practice in Wisconsin prior to the promulgation of admi nistrative codes and the establishment of procedures for siting and c onstructing waste disposal facilities. Chapter NR180,

Wisconsin Administrative Code for Solid Waste Management was promulgated in 1988. Solid waste disposal, environmental monito ring, and beneficial reuse are currently regulated under administrative code chapte rs referred to as the NR500 series (NR500- NR590).

Groundwater quality standards for regulating solid and hazardous waste facilities are specified under Chapter NR140, Wis. Adm. Code. Groundwater quality is measured against the enforcement standard (ES) and the preventive action limit (PAL) for substances that are of public health con cern. The enforcement standards are roughly equivalent to the federal maximum contamin ant levels (MCLs). The preventive action limit is generally 10% of the ES for all subs tances that have carcinogenic, mutagenic, teratogenic properties or in teractive effects and 20% of the ES for other compounds. Enforcement standards and preventive action limits for boron became effective on January 1, 1999. Samples from potable drinki ng water wells generally are not filtered, and represent total values for compounds a nd are regulated under Sa fe Drinking Water Standards in Chapter 809.

The primary purpose of this paper is to an alyze groundwater quality data from a wide variety of Wisconsin CCB dispos al sites and to compare and contrast these results with water quality data from the two detailed st udy sites: WE Energies Highway 59 and Cedar Sauk landfills. The data was also examined to determine possible trends or similarities between different sites and among vari ous disposal site categories.

Wisconsin Groundwater Quality Data

To evaluate of the impact of CCB dis posal sites on groundwater quality, it became necessary to identify both active and closed CCB monofills in Wisconsin that have active

1 Wisconsin Department of Natural Resources, Milwaukee Service Center

2 Wisconsin Department of Natural Resources, Madison

1

### groundwater monitoring. All groun dwater quality data for solid waste facilities that is reported to the WDNR is recorded in th e Groundwater and Environmental Monitoring System (GEMS) database. The GEMS database is one of the largest in the nation, containing over 10,994,294 analytical results from 18,467 active and 4,259 inactive monitoring points.

From the 22 identified CCB monofill landfills in GEMS, 12 sites (6 active and 6 closed) were chosen based on size, known groundwater impacts, and the completeness of their data sets. A Monitoring Data Summary by Parameter report was reviewed for each of these 12 sites to determine the most impact ed monitoring wells at each site. Four compounds were identified as the most commonl y detected at levels that exceeded the State of Wisconsin's groundwater protection standards. These compounds include boron, sulfate, arsenic and sele nium. Elevated levels of mangane se were detected at about half the sites and there were sporad ic exceedances of lead, chromium and mercury at several sites. Typically, 3 or 4 downgradient monitori ng wells would account for the majority of the exceedances at each site. From there, a Summary Exceedance Report detailing all parameters and results was generated for the most impacted well at each site. The report listed the lowest and highest reported sample results and calculated the mean of all samples collected. A summary of th ese findings is listed in Table 2.

It must be acknowledged that th is analysis is intended as a broad attempt to categorize groundwater quality data that is strongly infl uenced by a large number of variables, most of which are not easily quantified and not addressed in this study. The type and

concentrations of contaminants available for release into a groundwater system are directly related to the co al source, the combustion method employed by the generating plant, and environmental conditions of the disposal site. This information is often difficult to obtain or unavailable, esp ecially for older, long closed sites.

In addition, the groundwater monitoring da ta presented are the mean value of all available data for the most impacted well at the facility. Some of the wells represented are no longer in service. The location of the well can strong ly influence the results and some of the monitoring points were actually screened through or just below the waste mass. Especially with regards to the older, closed sites, the mean can be skewed higher by older data that recorded values that have since declined, in some cases dramatically. Even given these constraints, some intere sting results can be discerned from the groundwater quality data.

Measurable quantities of boron were recorded in at leas t one downgradient monitoring well at all the sites reviewed, including active site s that were constructed with clay liners. However, the boron concentrations tended to be rather low at active lined sites, with 2 sites recording mean values at concentrati ons below the Wisconsin groundwater standard (0.960 mg/l) for boron. That is in stark contrast to several closed sites that have mean

concentrations of boron over 10 times the mean concentration of even the highest value at

an active site.

2

### The highest mean boron concentration among a ll sites was recorded at the Cedar Sauk Landfill (mean 101 mg/l). This value is well above the next highest mean concentrations (69 mg/l and 30.7 mg/l, respectively) for eith er active or closed sites. The GEMS database documents that the highest r ecorded boron concentration in groundwater monitoring wells (as high as 186 mg/l) were recorded at wells W-3 and W-3A at the Cedar Sauk Landfill. These elevated boron concentrations were most likely influenced by the boron concentrations in the original coal source and the transmissivity of the disposal environment. Data from EPRI database (J anuary 2004) on the boron content of various coals from different regions of the country indicates that th e range of boron content can vary considerably.

Table 1

Number of

Coal Median Average Std. Dev. Maxi mum Minimum Number of Nondetect Type Detected Detected Data Points Values

Eastern Bituminous 25 41 43 201 0.26 60 4 Eastern Interior (Illinois Basin) Bituminous 100 113 57 214 11 47 1 Northern Great Plains Lignite 0.5 53 68 150 126 10 6
Northern Great Plains Subbituminous 29 62 99 353 22 22 3 Rocky Mountain Subbituminous 43 56 22 80 39 5 0

A ll data that are designated as "poor" or "unacceptable" quality in the PISCES Database were excluded from all calculations. All "unknown" quality data were included in the calculations.

Coal analyses are for "as-fired" or "as-received" coals and are presented on a dry weight basis. Boron Concentrations in Coal, by USGS Region

Summary Statistics (mg/kg dry weight)

Source: EPRI PISCES Database (January, 2004)
Notes: The concentrations presented in the tables were calculated using one half of the detection limits for all nondetected va lues. Nondetected values (represented by one half the detection limit) greater than



### As with boron, sulfate was detected in measur able quantities at downg radient wells at all the sites studied. Unlike boron, however, el evated sulfate leve ls were common among most sites including the active, engineered landfills. The mean sulfate value was above the Wisconsin enforcement standard (ES) of 250 mg/l at 10 of the 12 sites studied. Only one site, the NSP-Woodfield Landfill, had a downgradient well that never recorded a

value above the ES. Two active landfills had m ean values at (or above) the mean values

for most of the closed sites.

Most active sites had mean arsenic values ju st below the Wisconsin enforcement standard of 10 ug/l. The one active site that had a mean arsenic value above 10 ug/l was the Highway 32 Landfill (30 ug/l). However, th e mean was calculated from only 2 data points, so they may not be representative of the actual arsenic concentrations near the landfill. The arsenic levels at other monitoring wells downgradient of the Highway 32 Landfill were significantly lower.

The results that most stand out are the extremel y elevated mean arsenic values at three of the closed sites, Edgewa ter 1-4 (364 ug/l), Nelson Dewey (197 ug/l), and AlliantColumbia (40 ug/l). The one thing that all these sites have in common is that CCB waste was sluiced to the site before they closed. None of the other parameters studied has such a close correlation with the waste disposal method. In addition, at least one study site, the Highway 59 Landfill, had very low values of arsenic (mean of 3.04 ug/l) in spite of having a documented significant release into a transmissive subsurface environment. All

3

### this suggests that the elevated arsenic leve ls are more related to the coal source or combustion process rather th an hydrogeologic conditions.

Selenium rarely exceeds concentrations of 1 ug/l in natural surface or groundwater (Hem, 1992), so it is useful in determining potenti al releases from CCB di sposal sites. Low

levels of selenium were detected at al l the study sites, with the lowest mean concentrations occurring in the active sites. However, only two sites, the Cedar Sauk Landfill (77 ug/l) and the Nelson Dewey Landfill (78.8 ug/l), had mean selenium values

that exceeded the Wisconsin enforcement sta ndard of 50 ug/l. While they had similar mean values, the Cedar Sauk Landfill had some of the highest selenium values (up to 730 ug/l) of any landfill in the study. Other than th eir elevated selenium levels, the two sites have little in common. This suggests that the co al source may be the dominant factor in determining whether or not excessive selenium contamination will be a problem at any given site.

Site Specific Studies

To further illustrate the nature of groundwater contamination from CCB disposal sites, two landfills, the Cedar Sauk Ash Landfill a nd Highway 59 Ash Landfill, were examined in detail. WE Energies, formerly the Wisconsin Electric Power Company (WEPCO), operated both landfills. Both site s were located in old nonmetallic mine sites, neither was constructed with a liner, and both were closed by 1980. These sites were chosen based on their identification by the US Environmental Protection Agency (US EPA) as examples of sites where there was proven or potentia l damage involving the placement of coal combustion wastes in sand and gravel pits or mines (US EPA, 2000). A third Wisconsin site not included in this study, the Lemberger Landfill in the Town of Franklin, was also identified by the US EPA. The Lemberger Landfill accepted both municipal/industrial waste and power plant ash during its life. Due to the nature of the disposal methods, it was determined that groundwater impacts fr om contaminants in the municipal and industrial waste could not be separated from potential impacts from coal ash. Given these uncertainties, this site was determined to be unsuitable for any study attempting to quantify the impacts of CCB disposal on groun dwater and was theref ore not included in this report.

Cedar Sauk Ash Landfill

Background

The Cedar Sauk Ash Landfill (WDNR License # 603) located in the Town of Cedarburg, Ozaukee County, was operated as a disposal site from 1969 th rough 1979. The fly and bottom ash was generated by the Port Wa shington Power Plant (WEPCO, 1985). During this time approximately 650,000 cu bic yards of ash was dispos ed of on 25 acres of a 42- acre site. Prior to its development as a landfill, the parcel was used as a sand and gravel pit. The landfill was sited before Wisconsin's solid waste disposal laws were enacted so

the site was not constructed with either a liner or a leachate collection system.

4

### In response to approval conditions from the WDNR, WEPCO installed and began monitoring a series of monitoring wells in late 1978. The initia l results indicated elevated levels of boron, sulfate and selenium in wells downgradient of the landfill. Follow-up inspections of the closed landfill in 1980 and 1981 revealed vegetative stress characteristic of boron toxicity in the wetl and vegetation downgradient of the landfill. Analysis of plant tissue collected from th e visibly impacted plants showed boron concentrations from between 300 and 1,600 mg/l. Healthy plant tissue sampled in the area had boron levels between 7 and 61 mg /l (WEPCO, 1982). WEPCO concluded that precipitation percolating through the waste ma ss and a water table n ear the base of the landfill were likely the cause of these impacts and they proposed some remedial actions.

In 1983, WEPCO proposed a groundwater mitigat ion plan to the WDNR consisting of 3 groundwater extraction wells to be placed downgra dient of the fill area. The water was to be pumped into Mole's Creek after flow ing over rock-filled trench. The WDNR approved the action and the system began operating on September 7, 1984.

During the first 5 years of its operation, the extraction well system seemed to operating

well and the contaminant levels in the downgradient monitoring wells dropped. However, by 1990 the levels of all contaminan ts began to rise again in spite of the extraction system (WEPCO, 1995). Based on groundwater modelin g of the system, WEPCO concluded that the capt ure zone of the 3 extracti on wells was inadequate to capture all groundwater contamination migrat ing from the landfill. To address this problem, WEPCO installed an engineered ca p over the landfill in the summer of 1997 consisting of recompacted clay, 30-mil PVC ge omembrane and a rootin g layer with 2 feet of general fill and 6 inches of topsoil. The cap work was completed on Oc tober 3, 1997 and the groundwater ex traction system was permanently abandoned.

Geology and Hydrogeology

The Cedar Sauk Landfill is located in an area of hummocky end moraine and glacial outwash deposits from the last of the glacia l advances of the Lake Michigan Lobe some 13,000 to 14,000 years before present. The unde rlying unconsolidated glacial sediments generally consist of poorly to moderately well sorted sand and gravel deposited on and beneath glacial ice by meltwater streams near the ice margin (WGNHS, 1997). These deposits and underlying tills ar e assigned to the Oak Creek Formation. Underlying the Wisconsonian-aged glacial deposits is a relatively thick deposit of Silurian dolostone of the Niagaran Series. This massive dolomitic limestone has a highly irregular erosional

surface and contains numerous fractures and so lution features. Cross-sections based on borings near and beneath the landfill area show that the landfill was sited on a bedrock knob of Niagaran dolostone. The sand and gravel mining operation removed the

unconsolidated material over the bedrock a llowing waste to be placed directly on the

fractured rock. North and east of the bedr ock high, towards Mole's Creek, the sand and gravel outwash deposits thicken from absent to 25 feet thick beneath the landfill to over

50 feet thick near the creek.

5

### There are two major aquifers present at th e site: the upper sand and gravel outwash deposits and the lower, Niagaran dolostone (WEPCO, 1995). The sand and gravel aquifer is generally unconfined and forms the water table. To the east of the landfill, near Mole's Creek, the sand and gravel unit is underlain by s ilty clay to clayey silt glacial till unit.

Beneath the landfill this unit is either abse nt due to mining or directly underlain by

bedrock.

Groundwater flow in the Niagaran dolostone is primarily through an extensive network of

fractures and solution features (including paleokarst) in th e bedrock. This aquifer is considered a regional aquifer and is used by private water supply wells in the Town. However, beneath the landfill and elsewhere al ong the bedrock knob, it is in contact with the upper sand and gravel aquifer and the wa ter table can occur within both units.

Groundwater within both the sa nd and gravel aquifer and the Niagaran bedrock flows from the west to the east and southeast. Mole's Creek is considered a groundwater discharge point for shallow gr oundwater that flows from th e landfill area. Groundwater table elevations within the shallow, unconfin ed sand and gravel aquifer range from 808 feet above mean sea level (MSL) at the southw est corner of the fill area to 779 feet above MSL along Mole's Creek. There are no strong ve rtical gradients at any of the nested monitoring wells, although wells west and within the fill ar ea tend to have slight downward gradients and wells to the east trend to have slightly upward vertical gradients.

Groundwater Quality

The Cedar Sauk Landfill has had an extensive groundwater monitoring system in place since 1978. As might be expect ed, most of the contamination is concentrated in the sand and gravel aquifer that discharges into Mole's Creek. The most common elevated parameters include boron, sulfate and selenium.

The highest levels of both disso lved boron and sulfate were r ecorded at monitoring wells

W-3 and W-3A. These nested wells were lo cated within the waste mass and both wells

were screened in ash. The data from these two wells is of limited usefulness because they were only sampled from August of 1979 until June of 1983, while the site was closed but inadequately capped. During this limited period, boron levels ranged from 11 to 186 mg/l in well W-3A and sulfate ranged from 520 to 1923 mg/l in well W-3. Both

these levels are well above the Wisconsin enforcement standard (ES) of 0.96 mg/l for boron and 250 mg/l for sulfate. While consis tently elevated, the levels could vary considerably even from one month to the next . There were even some distinct seasonal trends over the four years of sampling. This pattern suggests that mobilization of both

sulfate and boron were related to periodic inputs of precipi tation infiltrating through the ash (WEPCO, 1995).

A detailed review of all groundwater quality da ta from the site indicated that monitoring well W-4 was the best candidate to represent groundwater impacts from the landfill. W-4 is an active well that has groundw ater quality data stretching from August of 1979 to the present. It is located on the eastern edge of the fill area and is screened in the shallow sand and gravel unit. The data indicates that is has been significantly impacted by

6

### disposal practices. In fact, the highest levels of selenium, up to 730 ug/l, recorded at the

site were from well W-4. The groundwater quality trends from this well are also very similar to general water quality trends found in other downgradient wells.

The pH values from well W-4 were very cons istent and only varied between pH 6.7 to 7.6, with a mean value of pH 7.07, essentially neutra l. This is in cont rast to the leachate results from wells W-3 and W-3A, where the results were slightly alkaline with pH values between 6.8 and 8.7 with a mean of pH 7.8. These results mirror the results of the larger study presented in this paper, again suggesting that the buffe ring capacity of even sandy soils at the site were adequate to neut ralize the low-le vel alkalinity in the leachate.

Boron concentrations were consistently elevat ed at well W-4 with levels between 6 and 140 mg/l, well above the ES of 0.96 mg/l. Wh at is most remarkable about these concentrations is the way th ey responded to site activity. The boron levels steadily climbed as the site was being filled up to its final grades, going as high as 112 mg/l. However, when the site was finally closed and the relief well syst em was activated in 1984, the boron levels dropped dramatically from 52 mg/l to 6.8 mg/l in the space of 3 months. The levels fluctuated, but stayed re latively low until they began creeping back up starting in 1993. The exact cause of this upward trend in sp ite of the continued operation of the relief well extraction system was evaluated (WEPCO, 1995), but an exact cause was not determined. It was suggested that the well system was no longer effectively capturing most of the contamina tion coming from the landfill.

The boron concentrations reached their peak in August of 1997, when the relief well system was shut down and the new geomembr ane cap was being installed. However, after 1997, the boron levels dropped rapidly a nd dramatically, from a high of 140 mg/l to a low of 14 mg/l in 2003. This drop was mi rrored by the sulfate levels, which decreased from 1070 mg/l in 1997 to 262 mg/l in 2003. Cl early, reducing infiltration through the waste mass by installing a geomembrane cover has effectively reduced contaminant concentrations downgradient of the landfill.

While the boron and sulfate at well W-4 reacted in similar ways to the remedial measures at the landfill, selenium levels reacted a b it differently. While selenium levels in W-4 were generally elevated, with levels as high as 980 ug/l, befo re the site was closed, the selenium concentrations dropped sharply afte r the site was closed and the relief well system was operational in 1984. Within 3 months (September, 1984 to December, 1984, the same period mentioned with the boron a nd sulfate results), the selenium levels dropped from 240 ug/l to 12 ug/l and they never recovered. These results suggest that selenium does not stay in solution as readily than either sulfate or boron.

Highway 59 Ash Landfill

Background

The Highway 59 Ash Landfill (License # 918) is located southeast of intersection of State Trunk Highways 59 (Arcadian Avenue) and 164 in the Town of Waukesha, in Waukesha

7

### County. The landfill was sited in a former sand and gravel quarry, which had ceased operation in 1940. The quarry had a pond that was approximately ten feet deep and covered 1.5 acres. Coal ash disposal occurred at the site from 1969 to 1978. The facility was originally licensed in 1970, and covered approximately 30 acres. The CCB wastes

were derived from eastern bituminous coal fly ash and bottom ash from their Valley Power Plant. Approximately 500,000 cubic yards of solid waste (Class F ash) were deposited in this landfill. The ash has pozzolanic properties but was not self-cementitious (Ladwig, 1989). Waste thickness ranged from less than 10 ft in the southern one-half of

the site to more than 40 ft in the northe rn one-half. Approximately 8,000 cubic yards of ash was deposited below the water table in th e northern portion of the site, and 30,000 yards in the southern portion of the site behind an earthen dike.

Numerous active private water supply we lls are located around the landfill with the exception of the southern side where railroad & utility corridors and low marshy terrain limited construction. Most private wells in the area serve family residences, but there are a few two-family buildings and businesses with wells. Immediately west of the ash landfill is an old, unlicensed municipal waste dump operated by the City of Waukesha in the 1950’s and 1960’s. An old abandoned foundry wa ste disposal site li es directly south of the City waste site.

Geology & Hydrogeology

The geological setting of this site is genera lly similar to the Cedar Sauk site. There are unconsolidated glacial deposits below the site that range from 90-150 feet in thickness. These deposits were subdivided into four un its: an upper sand and gravel unit (suitable as an aquifer), a sandy glacial-till (diamicton) unit, a silty clay unit, and a lower sand and gravel unit (also suitable as an aquifer). The lower sand & gravel unit is in direct contact

with the weathered bedrock north of the site. The under lying bedrock is Silurian Dolomite, which serves as the primary aqui fer for the City of Waukesha and many Town of Waukesha residents. A thorough evaluation of the limits of fill and the careful placement of monitoring wells between the as h landfill and the othe r nearby sites made the task of evaluating the water qual ity impacts complex, but possible.

Groundwater monitoring around the landfill was initiated 1970’s. WEPCO initiated a hydrological investigation in 1988, which in cluded the installation of 13 additional monitoring wells and piezometers and the sa mpling of four private water supply wells adjacent to the site. A report to the Departme nt in 1989 indicated elevated concentrations of sulfate and boron in private water supply we lls to the west of the site. There were no NR140 water quality standards for boron at the time of the investigation in 1989. Subsequent groundwater monitoring consis ted of sampling 20 monitoring wells and private water supply wells on a regular basis.

Groundwater Evaluation

The time vs. concentration (TvC) plots for various monitoring wells and private drinking water supply wells show a variety of intere sting trends. There is a decrease in sulfate

8

### levels for shallow wells near the landfill, but boron levels are increasing. This appears to document the continued migration of high mob ility boron ions. The data for this site

showed a close correlation between the occurr ence of boron and high levels of sulfate. Molybdenum occurred in the CCB leachate in the low ug/l range. Although it does not have a NR140 standard, it served as a marker for leachate contamination from this site. This distinction was essential for discriminating between leachate contamination from CCB materials, and background levels of su lfate and/or the potential commingling of leachate plumes from the other two waste sites.

The highest levels of both boron and sulfat e in monitoring wells were recorded in monitoring well nest W-8, which was located in native materials downgradient and in close proximity to the ash disposed of in the former quarry pond. The sulfate levels are usually three orders of magnitude higher than the bor on, but some plots show sulfate concentrations levels decreasing wh ile the boron levels have climbed.

The monitoring wells and shallow piezometers are screened in the sand and gravel units. The sand & gravel units southeast, southwest, west, and northwest of the ash site show

contamination above enforcement standards fo r sulfate and boron. Ni ne piezometers were completed in the bedrock in order to evalua te deeper groundwater im pacts. The migration of CCB contaminates into the deep aquifer may have been hastened by a private water supply well (WJAC) near the western edge of the ash fill. The busines s operating the well may have been pumping it on a regular basis to wash the numerous cars on their sales lot. This well was the first impacted private we ll near the landfill. The concentration of

sulfates made the water undrinkable and bot tled water was supplied up until the time the well was abandoned and the facility placed on city water.

Elevated concentrations of sulfate and bor on have been detected in deeper bedrock piezometers primarily northwest of the site. This information confirms that there is northwestern component to the contamination plume, which was not identified in the early stages of the off-site investigation. This component of flow may have been influenced by the installati on of a higher capacity water supply well for a large retail

store north-northwest of the landfill. This bedrock well has since been abandoned and the building connected to municipal water.

Remediation

WEPCO retained Natural Resources Technology, Inc. and Science & Technology Management, Inc. to evaluate various remedial action alternatives. Between 1995 and 1998, WEPCO submitted a series of reports a ssessing the degree and extent of the contamination from the landfill. On May 5, 1999, WEPCO submitted a remediation plan

that included removal of the saturated ash from the northern porti on of the site and replacement of ash above the seasonal high groundwater elevation. Several samples of water from liquid in contact with the e xhumed ash showed molybdenum values two orders of magnitude higher than other samples.

9

### The majority of landfill area was recapped w ith a synthetic geomembrane and waste fill areas that were not on the site property we re covered with aspha lt. Although ash fill covers about 26 acres, only 19 acres were re capped due to presence of buildings and other structures. The cover design consists of 3-inches of existing cover fill, a 4-inch sand bedding layer, a 30-mil PVC geomembrane, a geocomposite drainage layer (consisting of geotextile and geonet), 2-feet of gene ral fill, and 6-inches of topsoil.

Long-term environmental sampling of the mo nitoring network consists of wells and piezometers as well as numerous private wa ter supply wells. WE Energies made a case for not excavating the 30,000 cubi c yards of saturated ash al ong the southern portion of

this landfill. WDNR recommended the removal of these materials since they seemed to represent an additional sour ce of leachate generation. Th e WDNR included additional environmental sampling of private water supp ly wells as a condition of approving the remedial action plan. The monitoring frequenc y for downgradient water wells is currently being increased in response to plume movement.

Conclusions

As mentioned earlier, this study was a simplif ied attempt to extract some meaningful conclusions out of a very la rge amount of groundwater m onitoring data. The results can be considered fairly conservative because the means were calculated based on the most contaminated well at the site using all historical data without regard to the well's placement (including those located in the waste mass itself) or status. While much of the analysis was inconclusive, several general trends can be discerned.

First of all, it appears that the engineered, recompacted cl ay liners at the active sites

evaluated are effective at limiting groundwater contaminate releases. They are by no means perfect and there were measurable gr oundwater impacts in at least one monitoring well downgradient of each landfill. However, th e contaminant levels were, in most cases, an order of magnitude lower when compared with the results from the closed, unlined landfills. This is especially true with re gards to arsenic and bo ron concentrations.

A review of groundwater qual ity data at both act ive and closed disposal sites in Wisconsin indicates that boron, sulfate, arse nic and selenium are generally the best indicators of water quality impacts from CCB disposal. Manganese was also indicative of groundwater impacts, but there weren' t enough sample result s to adequately

characterize the connection. Of all the parameters studied, boron seemed to the best indicator of groundwater impacts. Arsenic was on ly useful at sites th at sluiced their waste

or used certain coals that were high in arsenic. Ar senic was also only found in appreciable amounts at wells that were screened within the waste or fairly close to the waste fill limits and may be documenting an io n halo effect. Further out, arsenic likely undergoes a geochemical inte raction with the groundwate r, complexes with iron hydroxides or organics and is therefore no longe r chemically availabl e to go into solution (Hem, 1992).

10

### The data certainly suggests a strong connection between th e practice of sluicing CCB waste and strongly elevated levels of certain compounds, including heavy metals and arsenic, in the leachate and ground water. This problem is confin ed to older, closed sites, as sluicing CCB waste has not been practiced in Wisconsin since the mid-1980's.

In fact, the volumes of CCB waste disposed in Wisconsin has dropped dramatically as the power utilities have switched to dry handling and have aggr essively pursued beneficial reuse options for their CCB wastes. In fact , as of 2003, WE Energies now reuses more CCB waste than they produce. This is due to a WE Energies projec t at their Pleasant Prairie Landfill where they are mining an old site, reburning the ash, and beneficially reusing the subsequent ash. Most ash is beneficially reused in concrete as an additive or as fill in construction projects.

As for the site specific studi es, it should be noted that th e results at Cedar Sauk and Highway 59 Ash Landfills were the result of a very specific set of circumstances that should not be extrapolated to a ny specific site or use except in a very general sense. Each disposal site was unique with respect to the geologic enviro nment and the type and nature

of the CCB waste. All of thes e factors combined to determine the degree and extent of contamination at each site, includi ng the type of contaminant found.

Another factor that should be considered, especially at the Cedar Sauk Landfill, was that the most contaminated monitoring wells were located and screened in waste. In effect, they were measuring leachate quality, not gr oundwater. This is hardly unique to Cedar Sauk, as the statewide study revealed seve ral other old sites where the highest

contamination was from wells that were constructed within the waste mass as recommended by the US EPA at the time of th e installation of the wells. It is also significant that some of the highest contamina tion levels were detected before the sites were closed and capped. These early results certainly can skew the mean values higher.

The documented impacts to groundwater quality at both sites were also exacerbated by the geology of the disposal sites, wh ich included fractured bedrock and highly transmissive outwash sands and gravels with little attenuation capacity. Inadequate capping of the waste masses until recently also allowed precipitation to infiltrate through the waste mass and pick up contaminants that was then transmitted to the groundwater.

However, it is important to note that, under curre nt rules, the siting a nd facility design of either of these landfills would not be acceptable if they were still operating. The State of Wisconsin has very vigorous design and mon itoring standards for th e very reason that many areas of the State contain high-quality shallow groundwate r that is used and valued by its citizens.

It should also be noted that the remedial meas ures installed by WE Energies at both these sites have been effective at dramatically reducing groundwater impacts. The Cedar Sauk Landfill remediation project shows that proper capping of a CCB landfill is highly effective at reducing negative impacts to groundwater quality. Water quality at the Highway 59 site has improved, but several pl umes are still migr ating through both the

11

### sand & gravel and bedrock aquifers. The size and extent of the contamination makes offsite groundwater extraction difficult when ba lanced against the de creasingly available water resources for the City of Waukesha.

Acknowledgments

The authors wish to acknowledge WE Energi es and EPRI for data on boron values for coal ash analyses.

References

U.S. Environmental Protection Agency. 2000. Regulatory Determination on Wastes from

the Combustion of Fossil Fuels. 65 FR 32214.

Wisconsin Electric Power Company (WEPCO). 1995. Cedar Sauk Ash Landfill License #603: Groundwater Mitigation Biennial Report (1993-1995). March 24, 1995. 20 p.

WEPCO, 1985. First Annual Report, Cedar Sauk Ash Landfill Site. 18 p.

WEPCO, 1999. Remedial Design Report Highway 59 Ash Landfill.

Kammerer, P.A., Jr. 1995. Ground-Water Flow and Quality in Wisconsin's Shallow Aquifer System. USGS Water-Resources Investigations Report 90-4171. 42 p.

Hem, J. D., 1992, Study and Interpretation of the Chemical Characte ristics of Natural Water. USGS Water-Supply Paper 2254. 263 p.

Gotkowitz, M. B., Simo, J. A., and Schr eiber, M., 2003, Geol ogic and geochemical controls on arsenic in groundwater in northeastern Wisconsin: Final report.

Eaton, T. T., Bradbury, K. R., 1998, Evalua tion of the confining properties of the Maquoketa Formation in the SEWRPC regi on of Southeastern Wisconsin. ii + 34 p.

Muldoon, M., 1999, Data from slug tests in the Silurian dolomite using a short-interval straddle-packer assemb lage, 23 p. + 1 CD-ROM.

Eaton, T.T., Bradbury, K. R., and Evans, T.J., 1999, Characterization of the hydrostratigraphy of the deep sandstone aquifer in southeastern Wisconsin. 30 p. + 15 color p. + 1 CD-ROM.

Muldoon, M. A., Stocks, D. L., Simo, J. A., 1999, Stratigraphic controls on distribution of hydraulic conductivity in car bonate aquifers. iv + 61 p.

12

### Gotkowitz, M., 2002, Report on the Preliminary Investigation of Arsenic in Groundwater near Lake Geneva, Wisconsin. 19 p + 5 color pages.

Eaton, T.T., Bradbury, K. R., Wang, H. F., 2001, Verification and Ch aracterization of a

Fracture Network within the Maquoketa Shale Confining Unit , Southeastern Wisconsin. 35 p.

Feinstein, D. T., Eaton, T.T., Krohelski, J. T., Hart, D.J., and Bradbury, K. R., 2004, Simulation of regional groundwater fl ow in southeastern Wisconsin.

Cherry, D.S., Curry, R.J., Soucek, D.J., 2000, Review of the Global Adverse Environmental Impacts to Ground Water and A quatic Ecosystems from Coal Combustion Wastes. 55 p.

Cherkauer, D.S., 1980, The Effect of Flya sh Disposal on a Shallow Ground-water System. 7 p., Ground Water, Vol. 18, No. 6, November-December.

Evangelou, V. P., 2000, Coal Ash Properties a nd Potential Impact on Water Quality, 17

p.

Mickelson, D., and Syverson, K., 1997. Quaterna ry Geology of Ozaukee and Washington Counties, Wisconsin. WGNHS Bulletin 91. 56 p.

Ladwig, K., 1989, Report on Groundwater Conditi ons at Wisconsin Electric Highway 59 Landfill, Facility 918, Waukesha, Wi sconsin. 47 p. (plus appendix)

Spencer, L., Drake, L., 1987, Hydrogeology of Alkaline Fly Ash Landfill in Eastern Iowa. Ground Water Journal, Vol. 25, No. 5 Sept.-Oct. 1987, 8 p.

1314 

### Table 2

Parameter

Facility name Boron (mg/l) 2 Sulfate (mg/l) Arsenic (ug/l) 3 Selenium (ug/l) Other Compounds Status

Alliant - Columbia

Landfill

Lic# 2325 Range

0.18-4.3

Mean

3.2 Range

210-870

Mean

457 Range

5-170

Mean

40 Range

0.5-7

Mean

1.86 Lead

- 10-140ug/l Manganese

- 320-830 ug/l Closed

Sluice Site

WP&L - Rock

River Landfill

Lic# 0728 Range

1.3-3.7

Mean

2.2 Range

53-900

Mean

322 Range

7-11

Mean

9 Range

1-5

Mean

3 Active

WP&L - Nelson Dewey Landfill

Lic# 2525 Range

2.3-28.4

Mean

9.23 Range

75-2100

Mean

1144 Range

5.5-800

Mean

197 Range

10-320

Mean

78.8 Manganese

- 720-1200ug/l

Chromium

- 45-68 ug/l Closed

Sluice Site

WEPCO - Pleasant

Prairie Landfill

Lic# 2786 Range

1.7-3.6

Mean

2.8 Range

1120-1340

Mean

1215 No Data Range

3.1-11

Mean

5.65 Mercury

- 0.3-1.6 ug/l Closed Being Mined

WEPCO - Hwy. 32

Landfill

Lic# 2801 Range

0.5-3.7

Mean

0.85 Range

87-1100

Mean

447 Range

25-35

Mean

30 Range

0.9-4

Mean

2.4 Active

WP&L – Edgewater 1-4

Landfill

Lic# 2524 Range

29-120

Mean

69 Range

640-2600

Mean

1661 Range

150-540

Mean

364 Range

1-8.4

Mean

4.7 Closed

Sluice Site

NSP – Woodfield

Landfill

Lic# 3233 Range

0.17-0.24

Mean

0.24 Range

40-96

Mean

63 Range

7-11

Mean

9.5 Range

0.5-8

Mean

3 Lead

- 28-38 ug/l Manganese

- 380-510 ug/l Active

Dairyland –

Belvidere Landfill

Lic# 2927 Range

1.4-9.1

Mean

5.25 Range

750-2000

Mean

1403 No Data Range

2.9-30

Mean

18 Active

WPSC - Weston #3

Landfill

Lic# 2879 Range

0.22-2.68

Mean

1.02 Range

51-791

Mean

210 Range

6.7-16.7

Mean

10.7 Range -91.4

Mean

23 Lead

- 0-9.7 ug/l Manganese

- 460-1620 ug/l Closed

WE Energies -

Cedar Sauk

Landfill

Lic# 0603 Range

11-186

Mean

101 Range

520-1923

Mean

1397 No Data Range

1-730

Mean

77 Closed

WE Energies -

Caledonia

Landfill

Lic# 3232 Range

0.2-9.3

Mean

4.37 Range

260-430

Mean

311.6 Range

1-17

Mean

5.26 Range

0.6-5

Mean

1.6 Manganese

- 10-110 ug/l Active

WE Energies - Highway 59

Landfill

Lic# 0918 Range

15-50

Mean

30.7 Range

836-1170

Mean

1034 Range

2-5

Mean

3.04 Range

0.002-20

Mean

7.84 Manganese

- 490-670 ug/l Closed

1 - Values represent the range and mean of all de tects listed in the GEMS database for the most impacted groundwater monitoring well for each specific parameter at the facility. 2 - Milligrams per Liter (mg/L) or parts per million (ppm). 3 - Micrograms per Liter (ug/L) or parts per billion (ppb).

### Appendix - Section E Wisconsin Correspondence concerning regulation of CCR

• Wisconsin Department of Natural Resources


### i. June 17, 2009 – Letter from WDNR Secret ary Matt Frank to EPA Administrator

Lisa Jackson

ii. March 16, 2009 - Letter from WDNR Air & Waste Administrator Al Shea to Matt Hale, EPA Director of Office of Solid Waste

iii. March 9, 2009 – Letter from WDNR Hazar dous Waste and Prevention Section Chief to Susan Mooney, EPA Region 5.

iv. June 6, 2008 – Letter from Suzanne Bangert, Director of the Bureau of Waste and Materials Management to the Honor able Jim Costa, U.S. House of Representatives

• T 

### estimony of Ann Coakley, Director of the WDNR Bureau of Waste and Materials

management at EPA hearing in Chicago, IL on September 16, 2010