Appendix 

Wisconsin Department of Natural Resources comments on the United State 

Environmental Protection Agency’s Proposed 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 hearing in Chicago, IL on September 16, 2010 
Appendix – 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 environment. 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 Protection 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 unacceptable 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 restrictions 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 the 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 solid waste landfills and assistance to local 

governments and industry in developing new environmentally safe landfills and appropriate waste 

management practices are a major part of this program. 

In the early 1970's all operating solid waste facilities throughout the state were identified and 

licensed. Many solid waste facilities in environmentally 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 monitor 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 experience gained in Wisconsin during the 1980's 

and the state's groundwater legislation, revised solid 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 and 
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construction documentation criteria, operating criteria, environmental monitoring standards, and 

closure and post-closure care standards. 

In 1996, Wisconsin further revised its solid waste 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 first state in the nation to receive approval of its 

solid waste program by the EPA. 

Wisconsin pursued and had 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 extensive input by a technical advisory committee 

comprised of representatives from industry, academia and environmental groups. The rules 

became effective December 1, 1997. From this technical advisory and rule making process, it was 

clear that, in order to be effective at encouraging beneficial uses and diverting industrial 

byproducts from landfilling, the resulting regulations 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 unduly 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 data 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 liners and leachate collection systems demonstrate 

that liners and leachate collection systems are effective 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 waste (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 approximately 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 Corporation, Dairyland Power, Xcel Energy, and 

Madison Gas & Electric As noted previously, the department has many years of experience 

working with these companies on regulatory issues in general and waste management issues in 

particular, and we have a good working partnership on waste management and beneficial use of 

CCR materials. 

At this meeting, the Wisconsin utilities expressed support for Wisconsin’s regulatory approach. 

Furthermore these utilities agreed that EPA should use state regulation under Subtitle D with EPA 

and state program oversight. WDNR and these utilities believe a program for industrial wastes 

similar the EPA MSW Subtitle D program that allows for states to use their own regulations and 

statutes and resources to ensure quality industrial landfill siting, design, monitoring, operation 

and maintenance, along with a companion beneficial use program for appropriate industrial 

byproducts, is a better approach than the EPA Subtitle D self implementing approach. 

The Wisconsin utilities expressed significant concern over the possible regulation of CCR as a 

special waste under Subtitle C of RCRA. No hazardous waste landfills currently operate in 

Wisconsin and siting any new CCR landfill using Subtitle C procedures would be difficult if not 

impossible. Furthermore, it is unlikely that utilities will be able to continue to send ash to contract 

MSW landfills under the Subtitle C proposal. If the rule 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 beneficial 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 continued 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 CCR as geotechnical fill will be affected in a 

negative way whether the final rules are promulgated under Subtitle C or D. Any rules, when 

promulgated, need to state clearly what material 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 market 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 licensed facilities. Siting these landfills would be expensive and 

difficult. 

• Wisconsin utilities have contracts that contain 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 questions concerning legal liabilities. Multiple utilities 

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identified examples where customers will no longer 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 allow 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 use 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 under 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 Subtitle 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 landfills, and the significant costs of siting new 

hazardous waste landfills. In addition, there are 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 necessary authority. It appears many states’ 

environmental protection agencies and other parts of the federal government would support 

this approach. 

• Consider alternative regulatory approaches such 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 simultaneously 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 implementation 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 concerns, 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 market 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 determination 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 market 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 manufacturing 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 revised rules are drafted, EPA should provide for 

additional public comments. 

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

materials is under an effective Subtitle D waste management program with adequate state 

oversight. An effective subtitle D program is a solid waste program with sufficient state 

regulatory over-sight covering: facility siting, liner requirements, monitoring, capping, long term 

care and financial responsibility that should be adequate to ensure proper management of CCR 

material. This must include review by state Waste Program Regulatory staff in siting, design, and 

construction to ensure compliance. Based on our experience, WDNR does not believe the EPA 

self-implementing approach would be successful and the self-implementing provision should be 

removed and replaced with a requirement for state oversight where states can demonstrate an 

effective program under Subtitle D. WDNR recommends EPA reexamine its interpretation of its 

regulatory authority to delegate to states the authority to manage Subtitle D equivalent programs. 

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If additional authority is needed for EPA to delegate such a program to the states, then EPA 

should work with Congress to create the necessary authority. 

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 substitutes for virgin products or feedstock, 

• Reduce landfilling of industrial solid waste 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 the 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 used. 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 accomplished 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 and Subtitle D Regulatory Options, the discussion 

states that in May 2000, EPA concluded disposal of CCRs did not warrant regulation under 

Subtitle C, but did warrant regulation under Subtitle D of RCRA. WDNR supports EPA’s May 

2000 conclusion and believes EPA should use its limited resources to develop a subtitle D 

program as discussed in this set of comments. This seems to be an effective management 

approach given the experience WDNR has with these materials as opposed to beginning the 

regulatory assessment again. Any potential benefits that may be gained by going with subtitle C 

regulations will be lost in the time and effort to develop and implement subtitle C regulations. 

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 management 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 35129 and the proposed rule state that the rule 

will apply to CCR generated by electric utilities 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 clarification 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 terms 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 from 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 legal 

analysis 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, there are a couple of tactics that could be used. 

One is to seek congressional authority for the approach. The other is to draft a rule similar to s. 

40 CFR 761.77, TSCA coordinated approval, as a stopgap until EPA seeks and obtains federal 

authority to authorize State programs to regulate CCR waste disposal. 

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 preamble, 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 federal oversight in a Sub D context, it should be easy to draft 

rule language similar to the s. 40 CFR 761.77, authority for a TSCA coordinated approval, to 

establish as RCRA Sub D coordinated approval process. 

Under this authority, State agencies would have primary responsibility to perform review and 

issue approvals/permits, but EPA Regions would review the proposed plants and the draft 

approvals/permits for compliance with their concerns and, if need be, issue a concurrence letter or 

similar regulatory communication. This approach could serve as a permanent arrangement or 

serve as a stopgap until EPA seeks and obtains federal authority to authorize State programs to 

regulate CCR waste disposal. It should minimize workload on the Regional staff, utilize existing 

State authorities, staff, and procedures efficiently, reduce potential cost impacts on both state and 

federal programs, and maintain the current status of States being the primary contact and 

enforcement route for utility ash disposal sites. 

EPA could still establish a set of requirements to be met, at a minimum, by CCR landfill 

operators. This would present a challenge and a target for State agencies to utilize in State rule 

revisions, and also provide substantive basis for States to impose requirements listed in federal 

requirements if State rules do not include them. This means that it should be possible for rapid 

implementation of the CCR rule change. If EPA was concerned about the content of State rules 

including, at a minimum, all federal requirements, the rule could include a time limit for States to 

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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 adequate regulation under State rules could achieve 

the same goal. 

11. The preamble states on p. 35160 that “EPA also does not have the authority to determine 

whether any state permitting program for CCR facility is adequate”. EPA Regional staff did not 

seem to have undue difficulty with becoming familiar with State rules when reviewing State 

MSW landfill regulations as part of seeking authorization under part 258 MSW landfill rules, nor 

in making decisions about their adequacy. EPA Regional staff, in our experience, are reasonably 

familiar with State rules, including many or all requirements for non-MSW waste disposal sites. 

It should also be pointed out that State agency plan review staff are already in a position to 

achieve the goal repeated often in the preamble, of effectively implementing regulations and 

tailoring them to individual site conditions. 

12. The discussion of unencapsulated uses on pp. 35160 – 35166 proposes to define CCR use 

in filling quarries, etc., as landfills, which we believe 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 features 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 objection 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 applications 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 considered landfills, even if they include liners, 

caps, and leachate collection details. 

We can support the last bulleted item under the section entitled “4. Issues 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 uses that include protective design features such as 

liners and leachate collection, gradient control systems, caps, groundwater monitoring, etc. 

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

mixes with other wastes at the end of the section entitled “F. EPA is not proposing to revise the 

Bevill Determination for CCR generated by non-utilities”. Wisconsin has several papermill 

waste landfills and some of other industries that co-dispose of coal or mixed-fuel wastes with 

papermill sludge, yard waste, bark, process rejects such as knots, etc. The request involves 

considerable effort to collect the information about specific generators, waste volumes, 

characteristics, and other unspecified information. 

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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 information for comment on this rule. However, this is 

an important issue for non-MSW landfill regulation in Wisconsin, and we request that EPA solicit 

our help and information regarding this issue when they return to the question of regulation of 

coal ash and/or other wastes generated by the non-MSW, non-utility generators. 

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 with 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 that need explanation if rules do not specifically 

address them. 

Two comments of note on p. 35173: Manifesting is required for transport to off-site disposal, but 

not for disposal sites located on the same property as the combustor generating the CCR. No 

explanation is provided on issues such as whether property owned by utilities on both sides of 

public roads are considered the same property for CCR transporter purposed, thus not requiring 

manifesting, or separate properties, thus requiring manifesting for the sole reason of hauling 

vehicles crossing a public road. This situation can easily arise if a utility expands powerplant 

facilities to fill up its original parcel and purchases additional property for landfilling purposes. 

For beneficial use, the preamble states that the Bevill Amendment exemption applies to CCR 

used beneficially, so that RCRA Subtitle C rules do not apply from point of generation 

throughout the reuse process. When a product using CCR reaches the end of useful life, the 

product becomes a waste. Whether or not the waste is subject to RCRA Sub C or D will not be 

because of the CCR content but on whether the waste passes or fails the hazardous waste 

characteristics (TCLP, etc.). This appears to answer concerns about whether products or wastes 

resulting from products would automatically be subject to RCRA Sub C simply because CCR 

provided some of the ingredients. 

Comment on p. 35175: Only new CCR landfills would be required to meet the minimum 

technology requirements of liners and leachate collection systems. Existing landfills would be 

allowed to continue filling without having to be retrofitted with liners and leachate collection 

systems. Groundwater monitoring, corrective action and other requirements in accordance with 

the rule would be required at existing CCR landfills that continue to receive CCR wastes. It 

should be clearly stated what design requirements that lateral or vertical expansions of such 

landfills would have to meet, and what are the other requirements in the rule that an existing CCR 

landfill would have to meet. 

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 wastes (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 assessment, groundwater modeling was performed using a 

limited number of presumed designs. In addition 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 rooting 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 additional 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 similar 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 extraction should reduce head on the liner, which 

would affect gradient through the liner and consequent 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 they 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 allowed 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 the 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 experience with composite liners required of MSW 

landfills in Wisconsin. Our limited experience with double liner designs indicates that doubleliner construction leads to considerable difficulties in construction and longer construction 

schedules, and greater potential for construction defects, 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 designs or geologic situations. 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 environments and gradient control systems in areas 

with high groundwater, both of which appear to perform 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 3rd

party PE is sufficient guarantee that regulationss will be protective and whether other 

mechanisms would provide facility flexibility and/or verification. We do not agree with a selfimplementing approach in this proposed rule and believe that there is substantial value in a site 

investigation or siting process and State and/or federal agency review. Landfills are similar in 

magnitude to large public works projects, in that detailed review by a building permit review 

engineer is necessary to protect the public interest. The self-implementing nature of the proposed 

rule is not sufficiently flexible or protective. 

We do not agree with the assertion that an independent 3rd party PE is a sufficient guarantee that 

solid waste disposal facilities are adequately designed, constructed, operated, or closed. Our 

concern is based on experience dealing with owners, contractors, and consultants, both in design 

and in construction. EPA states in the Preamble that it is concerned about the lack of uniformity 

or adequacy when comparing State programs. Professional engineers vary in their experience, 

training, and background in the varied aspects of practice that are needed to design and construct 

a solid waste facility. They also operate in a market where the need for jobs and market share 

work against doing more than the lowest common denominator. We have seen the problems that 

can occur if owners of waste disposal facilities select engineering firms that are small, 

inexperienced, or operating outside of their past professional practice. We do not believe that 

leaving decisions about acceptability of design or construction solely in the hands of an 

consulting engineer employed by the landfill owner is adequate. 

Landfills are large earthwork structures, and earthwork construction is difficult, time-consuming, 

and subject to delays due to weather and availability of equipment and materials, all of which 

results in considerable pressure to complete projects. This can lead to shortcuts that are not 

advantageous. We find that interaction between regulatory staff, landfill owners, and technical 

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

The proposed notification by use of internet web pages is after-the-fact and does not substitute for 

interaction with the utility and its consulting engineer at the siting and design stage and 

observation during construction. We have found that these steps are crucial for effective design 

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

mid-1970’s. 

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

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cautious to not become dependent on a technology that may become outdated. We recommend 

that the rule require that owner/operators of CCR landfills be required to provide documents 

directly to the State agencies that regulate landfills. Documents could be provided electronically 

and, once received by the State agencies, would be publicly available under State and Federal 

public record rules. 

If EPA intends to proceed with the RCRA Sub D self-implementing alternative, the rule should 

also clearly state that it does not supersede or override authority by State agencies to require a 

review process for plan review of siting, design, construction, waste filling, and closure. 

It is also essential that the rule containing either exemptions or an expeditious conflict resolution 

process between State agencies and EPA Regions for in the event of landfill technology change, 

improved design methods, construction advances, or other changes that are not compatible with 

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 agencies discussed on pp. 35194- 35195 or the 

preamble proposes that a web site maintained by each utility would be required for concurrent 

notification of States agencies and the public of documentation in the operating record. This is 

after-the-fact reporting of accomplished actions, and is not sufficient for effective plan review and 

interaction prior to changes being made to design, construction, monitoring, recordkeeping, etc. 

of utility CCR disposal facilities. 

We do not object to the posting of information on a web page, as long as cost of maintaining the 

web page is bourn by the utilities and provisions are made to assure that the web page or 

successor technologies will be maintained over the time period for siting, licensing, construction, 

filling, closure, and long-term care, which collectively could be several decades. 

However, a more significant issue for environmental protection is to assure that State agency 

authority will be maintained for plan review, licensing, inspections, construction oversight, 

receipt of monitoring data, etc., without being superseded or compromised by a federal rule. 

Information should not be withheld from State agencies because of perceptions that it is a 

duplication of the web-based notification. In particular, documentation of proposed design, 

achieved construction, monitoring instrumentation and results, closure work, remedial actions, 

etc., should be required to be provided directly to the State agency prior to implementation and in 

accordance with State agency timelines. The rule should not imply or state that it is sufficient to 

post information on a web page after the fact as satisfying the legitimate interest State agencies 

have in regulating CCR disposal facilities. 

We have found it essential as a State regulatory agency to perform plan review prior to allowing 

owners to proceed with construction, to inspect facilities during construction, to be able to review 

construction documentation and any proposals for design changes before they are implemented, 

and to receive all monitoring data for retention in and extraction from our electronic database 

systems. It is not sufficient for 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 (CCPs)” specifically excludes CCPs used in excess, 

such as FGD gypsum land applied in excess of crop needs, 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, 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 is 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, refers 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-engineered containment or fill. As proposed, the 

rule is trying to do too much in the definition for effectiveness, and banning non-landfill noncontained filling need to be dealt 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 rule is effective but excavate after the rule is 

effective, this should be dealt with in the applicability section of the rule, not in definition. 

• Also, the last sentence explicitly applies regulation 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 bottom ash imply combustion in a pulverized coal-type 

furnace. This would seem to exclude other utility furnace designs, such as fluidized bed, or 

forestall applicability to new furnace designs that don’t utilized pulverized coal. 

“Independent registered professional engineer or hydrologist” needs revision if it is going to be a 

basis for the self-implementing RCRA Subtitle D alterative. 

• The definition calls for expertise in groundwater investigation, which is suitable for a 

hydrologist or hydrogeologist, but not enough on issues concerning an engineer, including 

competence in and knowledge of solid waste landfill design, operation, and closure, soil and 

geosynthetic materials used in landfill construction, and geotechnical aspects of soils, 

geosynthetics, solid wastes, and landfill operations. 

• Add the title “hydrogeologist”, which in some States is a professional who is more directly 

concerned with groundwater investigations 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 for CCR landfill design, construction, operation, 

and closure. 

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“Lateral expansion” leaves open the question of whether 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 too specific and too vague. It specifies commercial 

extraction of aggregate, which leaves out noncommercial extraction, such as gravel pits operated 

by municipalities, and also exclude metallic mineral 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 restrictions 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 landfills in Wisconsin does comply with these 

locational criteria. We suggest that these locational 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 requirement, 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 saturation landfills, which have a long history of use in 

high-clay soil environments in portions of the State. Both clay-lined and composite-lined landfill 

designs have been approved and successfully constructed and operated for many years. This is 

the sort of design that should not be banned because they provide for efficient use of space and 

favorable hydrogeologic formations, in parts of the 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 regulations 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 liner 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 continued 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 liner 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 composite 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 that it has demonstrated that a thick compacted 

clay liner cannot also meet the groundwater compliance 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 chooses to demonstrate the effectiveness of composite 

liners that include geosynthetic clay liners in conjunction 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 consistent 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 State 

agency review functions is another example of why Wisconsin objects to the proposed selfimplementing alternative. We have already 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 this 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 lab that has no connection to the sampling work. 

The owner is in a position to verify that all parties 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 abuse 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 authority over CCR landfills and which have a history 

of groundwater monitoring authority and data submission and 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 downgradient 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 hydrologist 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 groundwater 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 added to the proposed detection parameter list. 

Regarding the request on pp. 35206 - 35207 under assessment monitoring, we object to the lack 

of authority for State agencies to approve an alternative list of indicator parameters, for States that 

have effective groundwater monitoring authority and 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 requirements for groundwater assessment 

monitoring. The list of parameters may be suitable 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 authority 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 preamble about corrective actions required in 90 

days and the 3 year time period for implementation of a remedy, the generic time periods 

proposed may be sufficient in a number of cases, 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 longer 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 requirements 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 composite 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 agencies. The rule leaves decisions 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 are subject to a Research, Demonstration and 

Development (RD&D) permitting action by authorized States, for the purpose of demonstrating 

whether such covers actually work. The RD&D permits limit use of alternative covers to 3 year 

time periods and a 12 year total, with the requirement 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 evapotranspiration covers or water 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 deadlines, 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 effects 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 closure 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 notification 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 routine 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 requirements under CERCLA 108(b). We do not support 

the concept that financial responsibility under CERCLA should be “a key agency focus” under 

the Sub D alternative. Wisconsin, and likely many other States, already has requirements for 

financial responsibility for closure and long-term care that apply to CCR landfills. The proposed 

rule should be revised to acknowledge existing state financial responsibility requirements for 

CCR disposal facilities allow States with such programs to regulate financial responsibility plans 

for CCR landfills, and take advantage of the financial responsibility rules already authorized 

under the 40 CFR 258 rules. 

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 elements of the self-implementing proposed RCRA Sub D 

CCR rules, more or less regardless of the content of State rules. We believe that it is essential 

that the proposed rule recognize that State rules will apply to CCR landfills and to include a 

provision that States can approve CCR landfill with features that differ from the proposed rule 

requirements. As noted in several sections above, there are aspects of the proposed rule that may 

be less stringent than State rules or which address variations in engineering design or materials, 

climatic factors, or geologic situations that the proposed rule does not address or is in 

contradiction with modern technical or geotechnical practice. It is essential that State rules and 

review actions be allowed to modify requirements in the proposed RCRA Sub D selfimplementing rule, to address technical judgment and to incorporate technical advances that the 

rule does not anticipate. 

28. We have reservations about the proposed rule alternatives on pp 35220 - 35221 of the 

preamble. Our comments are: With regard 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 approaches. 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 except in states that developed enforceable Sub D 

rules for CCR disposal, this concept is comparable to MSWLF rules and is acceptable, as it 

acknowledges State rules and allows for the flexibility 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 and 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 instructive. Eventually, all States applied to 

their respective EPA Regions for authorization and received it. States were able to deal with 

more stringent requirements, local climate and 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 would still have to be proposed in some level of 

detail, and we would prefer the use of the RCRA Sub D part 258 MSW landfill example. 

An alternative that should be considered is the 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 have to make a simultaneous application to the 

State and the EPA Region. If EPA published a minimum 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 requirements. The State agency would take the lead 

in drafting an approval, with the EPA Region reviewing 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 either agency’s rules. When 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 that MSW landfills are subject to. A coordinated 

approval process should be compatible with State agency 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, subheading “State Programs”, requests feedback 

on current State regulatory approaches to CCR and any potential for the proposed federal 

regulations to cause disruption of State implementation of CCR regulation under State authority. 

Previous comments have pointed aspects of the proposed 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 also 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 and 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 feasibility 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 public 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 investigation of groundwater standards violations are in 

NR 507 and 508, Wis. Adm. Code. Financial responsibility 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 standards through rule and practice since the late 1970’s. The siting 

process has been in effect since 1979, as articulated 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 requirement of 4 feet of clay and a 60 mil HDPE 

geomembrane, and NR 504.07, Wis. Adm. Code requires 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 differences 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 facility 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 rules, 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 needed to modify our solid waste rules (NR 500 

series). 

We anticipate that staff training and plan review workload with a RCRA Subtitle D alternative 

can be readily integrated into our existing staffing and management. Existing staff would need 

considerably more training to implement the procedural elements and specific details of the 

RCRA Subtitle C proposed rules. The WDNR Waste & Materials Management program has an 

experienced set of 18 engineers and hydrogeologists, as well as several plan review experts and 

supervisors, to regulate 70 existing active landfills, including 11 CCR landfills. We do not have 

enough hazardous waste engineers and hydrogeologists 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 capability. However, the additional procedural requirements in 

the RCRA Subtitle C rule alternative would consume additional time and resources that are 

currently already stretched. 

EPA could mitigate difficulties imposed by the proposed rules by seeking and obtaining authority 

to use an authorization process such as was used for the Part 258 MSW landfill rules, or to 

develop rules that utilize a coordinated approval process. Either approach would be able to take 

advantage of resources that exist at the State agencies, 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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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 concerned 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, higher 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 they 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 use 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. Contracts 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 additional information on Wisconsin’s 

potential and confirmed damage cases from the disposal coal combustion residuals (CCR). EPA 

has requested additional information on potential and 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 exist in Wisconsin to provide comments on the 

proposed rule, we are including a copy of a report prepared in 2004 for the National Research 

Council’s study of managing coal combustion residues 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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From WDNR review of the environmental data from these disposal sites we readily acknowledge 

that improper management of CCR wastes can result 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, the 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 dry 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-membrane 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 disposal sites should focus as much on the final 

cover system as it does on the liner systems 

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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 using up to 85% of CCR each year, with some utilities 

exceeding 90% use. WDNR believes that most CCR materials can be beneficially used. For 

example, FGD materials are used in wall board, cement manufacturing, and in concrete products. 

In addition, coal bottom ash is successfully used as geo-technical fill material in road 

construction. Approximately 10.4 million cubic yards 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 Subtitle 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 because 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, was 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 proposed 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 encouraging beneficial uses and diverting industrial 

byproducts from landfilling, the resulting regulations 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 for the beneficial use of CCR in Wisconsin is 

largely self-implementing. Generators of CCR (Wisconsin law does not differentiate between 

industrial and utility generators) wishing 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 generator but, most importantly, test results to 

characterize the chemical properties of the CCR material. 

The WDNR realized early on that chemical and physical 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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even within these subdivisions, the potential variety can be great, not only between power plants 

but even between individual boiler units. For 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 ingestion), 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, Wis. Adm. Code. These limits were developed 

from the WDNR’s ch. NR 720 (Soil Cleanup Standards) standards for direct contact. Examples 

of permitted Category 1 and 2 uses include road surface 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) contained 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 exceedance 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 daily 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 occasional 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 material 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 eliminated. 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 impervious surface such as concrete or asphalt) 

geotechnical fill projects exceeding 5,000 cubic yards require concurrence by the WDNR prior to 

commencement of the project. Since it is a concurrence 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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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 tons 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 generated and 974,000 tons (86 percent) 

being beneficially used. Of that total, approximately 21 percent consisted of bottom ash/slag with 

the remainder being fly ash. WE Energies, the largest electric utility in Wisconsin, actually has 

reported more byproduct being beneficially 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 made 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 mid-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 new 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 relatively pure gypsum byproduct. Since there was a 

ready market for the material at a drywall manufacturer 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 amendment. 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 gypsum, 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 agricultural 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 class 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 effect 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 experience with this material indicates that it is not 

suitable for cement or concrete additive and we have 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 serious 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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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 methodologies, 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 considerably depending on the final federal rule adopted. 

From a programmatic perspective, regulating 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 Subtitle D would involve much less restructuring 

of administrative codes since regulation would still 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 that the proposed rule is not intended to affect existing beneficial 

uses, implementation of the RCRA Subtitle C option 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 restricted 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 projects would likely fail the “use constituting 

disposal” definition in the hazardous 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 practically 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. Wisconsin considers the use of CCR as ADC a beneficial 

use since it negates the need of a landfill to excavate virgin materials. 

• The rule would also severely curtail or eliminate 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 when 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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• 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 relate 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 intone category is that it removes any incentives 

for the producer to change their process to produce 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 testing (EPA-600/R-9/151, December, 2009) further 

reinforces the idea that CCR can vary considerably 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 for 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 boilers 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 cubic 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 related 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 with 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 hazardous 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 quantities 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, storing 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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29 

 The final regulations need to provide the incentives 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 

GROUNDWATER IMPACTS FROM COAL COMBUSTION ASH

DISPOSAL SITES IN WISCONSIN

Written by Michael Zillmer1

 and Philip Fauble2

 

Introduction 

The State of Wisconsin’s Department of Natural 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 sand & 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 administrative codes and the establishment of 

procedures for siting and constructing waste disposal facilities. Chapter NR180, 

Wisconsin Administrative Code for Solid Waste Management was promulgated in 1988. 

Solid waste disposal, environmental monitoring, and beneficial reuse are currently 

regulated under administrative code chapters 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 concern. The enforcement standards are roughly 

equivalent to the federal maximum contaminant levels (MCLs). The preventive action 

limit is generally 10% of the ES for all substances that have carcinogenic, mutagenic, 

teratogenic properties or interactive 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 drinking water wells generally are not filtered, 

and represent total values for compounds and are regulated under Safe Drinking Water 

Standards in Chapter 809. 

The primary purpose of this paper is to analyze groundwater quality data from a wide 

variety of Wisconsin CCB disposal sites and to compare and contrast these results with 

water quality data from the two detailed study 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 various disposal site categories. 

Wisconsin Groundwater Quality Data 

To evaluate of the impact of CCB disposal 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 groundwater quality data for solid waste facilities that is 

reported to the WDNR is recorded in the 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 impacted monitoring wells at each site. Four 

compounds were identified as the most commonly detected at levels that exceeded the 

State of Wisconsin's groundwater protection standards. These compounds include boron, 

sulfate, arsenic and selenium. Elevated levels of manganese were detected at about half 

the sites and there were sporadic exceedances of lead, chromium and mercury at several 

sites. Typically, 3 or 4 downgradient monitoring 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 these findings is listed in Table 2. 

It must be acknowledged that this analysis is intended as a broad attempt to categorize 

groundwater quality data that is strongly influenced 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 coal 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, especially for older, long closed sites. 

In addition, the groundwater monitoring data 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 strongly 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 interesting results can be discerned from the 

groundwater quality data. 

Measurable quantities of boron were recorded in at least one downgradient monitoring 

well at all the sites reviewed, including active sites 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 concentrations 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 all 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 either active or closed sites. The GEMS 

database documents that the highest recorded 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 (January 2004) on the boron content of various 

coals from different regions of the country indicates that the range of boron content can 

vary considerably. 

Table 1 

Number of

Coal Median Average Std. Dev. Maximum 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

All 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 values. Nondetected values (represented by one half the detection

limit) greater than

As with boron, sulfate was detected in measurable quantities at downgradient wells at all 

the sites studied. Unlike boron, however, elevated sulfate levels 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 mean values at (or above) the mean values 

for most of the closed sites. 

Most active sites had mean arsenic values just 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, the 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 extremely elevated mean arsenic values at three of 

the closed sites, Edgewater 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 levels are more related to the coal source or 

combustion process rather than hydrogeologic conditions. 

Selenium rarely exceeds concentrations of 1 ug/l in natural surface or groundwater (Hem, 

1992), so it is useful in determining potential releases from CCB disposal sites. Low 

levels of selenium were detected at all 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 standard 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 their elevated selenium levels, the two sites 

have little in common. This suggests that the coal 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 and Highway 59 Ash Landfill, were examined 

in detail. WE Energies, formerly the Wisconsin Electric Power Company (WEPCO), 

operated both landfills. Both sites 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 potential 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 from 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 groundwater and was therefore 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 through 1979. The fly and 

bottom ash was generated by the Port Washington Power Plant (WEPCO, 1985). During 

this time approximately 650,000 cubic yards of ash was disposed 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 initial 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 wetland vegetation downgradient of the landfill. 

Analysis of plant tissue collected from the 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 mass and a water table near the base of the 

landfill were likely the cause of these impacts and they proposed some remedial actions. 

In 1983, WEPCO proposed a groundwater mitigation plan to the WDNR consisting of 3 

groundwater extraction wells to be placed downgradient of the fill area. The water was to 

be pumped into Mole's Creek after flowing 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 contaminants began to rise again in spite of the 

extraction system (WEPCO, 1995). Based on groundwater modeling of the system, 

WEPCO concluded that the capture zone of the 3 extraction wells was inadequate to 

capture all groundwater contamination migrating from the landfill. To address this 

problem, WEPCO installed an engineered cap over the landfill in the summer of 1997 

consisting of recompacted clay, 30-mil PVC geomembrane and a rooting layer with 2 feet 

of general fill and 6 inches of topsoil. The cap work was completed on October 3, 1997 

and the groundwater extraction 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 glacial advances of the Lake Michigan Lobe some 

13,000 to 14,000 years before present. The underlying 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 are 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 solution 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 allowing waste to be placed directly on the 

fractured rock. North and east of the bedrock 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 the 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 silty clay to clayey silt glacial till unit. 

Beneath the landfill this unit is either absent 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 the 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 along the bedrock knob, it is in contact with 

the upper sand and gravel aquifer and the water table can occur within both units. 

Groundwater within both the sand 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 groundwater that flows from the landfill area. Groundwater 

table elevations within the shallow, unconfined sand and gravel aquifer range from 808 

feet above mean sea level (MSL) at the southwest corner of the fill area to 779 feet above 

MSL along Mole's Creek. There are no strong vertical gradients at any of the nested 

monitoring wells, although wells west and within the fill area 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 expected, 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 dissolved boron and sulfate were recorded at monitoring wells 

W-3 and W-3A. These nested wells were located 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 consistently 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 precipitation infiltrating through the 

ash (WEPCO, 1995). 

A detailed review of all groundwater quality data 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 groundwater 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 consistent and only varied between pH 6.7 to 

7.6, with a mean value of pH 7.07, essentially neutral. This is in contrast 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 buffering capacity of even 

sandy soils at the site were adequate to neutralize the low-level alkalinity in the leachate. 

Boron concentrations were consistently elevated at well W-4 with levels between 6 and 

140 mg/l, well above the ES of 0.96 mg/l. What is most remarkable about these 

concentrations is the way they 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 system 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 relatively low until they began creeping back up 

starting in 1993. The exact cause of this upward trend in spite 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 contamination 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 geomembrane cap was being installed. However, 

after 1997, the boron levels dropped rapidly and dramatically, from a high of 140 mg/l to 

a low of 14 mg/l in 2003. This drop was mirrored by the sulfate levels, which decreased 

from 1070 mg/l in 1997 to 262 mg/l in 2003. Clearly, 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 bit differently. While selenium levels in W-4 

were generally elevated, with levels as high as 980 ug/l, before the site was closed, the 

selenium concentrations dropped sharply after 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 and 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 northern one-half. Approximately 8,000 cubic yards of 

ash was deposited below the water table in the 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 wells 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 waste disposal site lies directly south 

of the City waste site. 

Geology & Hydrogeology 

The geological setting of this site is generally 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 units: 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 underlying bedrock is Silurian 

Dolomite, which serves as the primary aquifer 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 ash landfill and the other nearby sites made 

the task of evaluating the water quality impacts complex, but possible. 

Groundwater monitoring around the landfill was initiated 1970’s. WEPCO initiated a 

hydrological investigation in 1988, which included the installation of 13 additional 

monitoring wells and piezometers and the sampling of four private water supply wells 

adjacent to the site. A report to the Department in 1989 indicated elevated concentrations 

of sulfate and boron in private water supply wells 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 consisted 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 interesting 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 mobility boron ions. The data for this site 

showed a close correlation between the occurrence 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 sulfate and/or the potential commingling of 

leachate plumes from the other two waste sites. 

The highest levels of both boron and sulfate 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 boron, but some plots show sulfate 

concentrations levels decreasing while 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 for sulfate and boron. Nine piezometers were 

completed in the bedrock in order to evaluate deeper groundwater impacts. 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 business 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 well near the landfill. The concentration of 

sulfates made the water undrinkable and bottled water was supplied up until the time the 

well was abandoned and the facility placed on city water. 

Elevated concentrations of sulfate and boron 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 installation 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 assessing 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 portion of the site and 

replacement of ash above the seasonal high groundwater elevation. Several samples of 

water from liquid in contact with the exhumed ash showed molybdenum values two 

orders of magnitude higher than other samples. 

9 
The majority of landfill area was recapped with a synthetic geomembrane and waste fill 

areas that were not on the site property were covered with asphalt. Although ash fill 

covers about 26 acres, only 19 acres were recapped 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 general fill, and 6-inches of topsoil. 

Long-term environmental sampling of the monitoring network consists of wells and 

piezometers as well as numerous private water supply wells. WE Energies made a case 

for not excavating the 30,000 cubic yards of saturated ash along the southern portion of 

this landfill. WDNR recommended the removal of these materials since they seemed to 

represent an additional source of leachate generation. The WDNR included additional 

environmental sampling of private water supply wells as a condition of approving the 

remedial action plan. The monitoring frequency for downgradient water wells is currently 

being increased in response to plume movement. 

Conclusions 

As mentioned earlier, this study was a simplified attempt to extract some meaningful 

conclusions out of a very large amount of groundwater monitoring 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 clay liners at the active sites 

evaluated are effective at limiting groundwater contaminate releases. They are by no 

means perfect and there were measurable groundwater impacts in at least one monitoring 

well downgradient of each landfill. However, the 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 regards to arsenic and boron concentrations. 

A review of groundwater quality data at both active and closed disposal sites in 

Wisconsin indicates that boron, sulfate, arsenic 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 results to adequately 

characterize the connection. Of all the parameters studied, boron seemed to the best 

indicator of groundwater impacts. Arsenic was only useful at sites that sluiced their waste 

or used certain coals that were high in arsenic. Arsenic 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 ion halo effect. Further out, arsenic likely 

undergoes a geochemical interaction with the groundwater, complexes with iron 

hydroxides or organics and is therefore no longer chemically available to go into solution 

(Hem, 1992). 

10
The data certainly suggests a strong connection between the practice of sluicing CCB 

waste and strongly elevated levels of certain compounds, including heavy metals and 

arsenic, in the leachate and groundwater. This problem is confined 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 aggressively 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 project 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 studies, it should be noted that the 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 any specific site or use except in a very general sense. Each 

disposal site was unique with respect to the geologic environment and the type and nature 

of the CCB waste. All of these factors combined to determine the degree and extent of 

contamination at each site, including 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 groundwater. This is hardly unique to Cedar 

Sauk, as the statewide study revealed several 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 the installation of the wells. It is also 

significant that some of the highest contamination 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, which 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 current rules, the siting and 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 monitoring standards for the very reason that 

many areas of the State contain high-quality shallow groundwater that is used and valued 

by its citizens. 

It should also be noted that the remedial measures 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 plumes are still migrating through both the 

11
sand & gravel and bedrock aquifers. The size and extent of the contamination makes offsite groundwater extraction difficult when balanced against the decreasingly available 

water resources for the City of Waukesha. 

Acknowledgments 

The authors wish to acknowledge WE Energies and EPRI for data on boron values for 

coal ash analyses. 

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Cherkauer, D.S., 1980, The Effect of Flyash Disposal on a Shallow Ground-water 

System. 7 p., Ground Water, Vol. 18, No. 6, November-December. 

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

p. 

Mickelson, D., and Syverson, K., 1997. Quaternary Geology of Ozaukee and Washington 

Counties, Wisconsin. WGNHS Bulletin 91. 56 p.

Ladwig, K., 1989, Report on Groundwater Conditions at Wisconsin Electric Highway 59 

Landfill, Facility 918, Waukesha, Wisconsin. 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. 

13
14

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 detects 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 Secretary 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 Hazardous 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 Honorable Jim Costa, U.S. House of 

Representatives 

• Testimony of Ann Coakley, Director of the WDNR Bureau of Waste and Materials 

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