The below document was posted on this public site in error by EPA. Interagency 

comments on draft rules by federal agencies under Executive Order 12866 remain 

confidential to protect the integrity of the deliberative process. Because this 

document was inadvertently disclosed, EPA has decided, in this instance and with 

the agreement of the agencies, to allow the document to remain in the docket. 

This is a repost of EPA-HQ-RCRA-2009-0640-0263 and EPA-HQ-RCRA-2009-

0640-0349. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 1 of 46 

Below are working comments from the interagency review of the draft rule titled, 

“Standards for the Management of Coal Combustion Residuals (CCR) Generated by 

Commercial Electric Power Producers.” This document contains comments from OMB, 

CEQ, the Army Corps of Engineers, DOE, DOI, DOT, TVA, and USDA. 

Note these interagency concerns with the draft rule: 

- Regulation of CCR under Subtitle C could have negative impacts on the reuse 

(beneficial use) of these materials and may create liability concerns related to past 

reuse of these materials in applications such as construction and agriculture, and 

these implications have not been fully explored in the draft rule or supporting 

materials. 

- The draft rule does not distinguish between different types of coal combustion 

residuals (e.g. boiler slag, bottom ash, flue gas desulphurization), and each of 

these waste streams has different chemical and physical characteristics. 

OMB Overall Comments/Recommendations for Proposed CCR Rule 

 Organization: Organization of proposal does not clearly present options and 

alternatives in a manner that allows public or readers to clearly discern distinctions 

between the options. EPA should consider highlighting up front in the option 

presentation what is consistent across the proposals, then clearly delineate 

distinctions and discrepancies between various options. 

o Need to clearly state two problems this rulemaking addresses. 

 State Regs: EPA approaches this rulemaking as a means to fill state regulatory gaps. 

The preamble repeatedly cites a need for federal enforcement and permitting. 

However, of the proven damage cases cited, the majority were addressed through 

state administrative action. EPA never clearly articulates in the document what the 

actual need is for federal enforcement and permitting beyond what states could 

provide if empowered under Subtitle D (limited discussion on p. 153). If Subtitle C 

option to be pursued, recommend explicit text on what necessitates these two Subtitle 

C elements. 

o Further, EPA cites existing state regulations as an uncertainty. Given part of the 

rationale for presenting this rule is state regulatory gaps, EPA needs to address 

this omission and develop a full assessment of existing state regulatory regimes

rather than the anecdotal presentation in the draft proposed rule. 

 Beneficial Use: EPA cites in the preamble the optimal waste management scheme for 

CCRs is beneficial use, yet the “preferred option” would potentially result in adverse 

impacts on beneficial use markets. This approach merits broader reconsideration at a 

policy level: 

o Proposed rule invites comments on alternative approaches, but a proposed rule 

with a preferred option alone may have unintended consequences on beneficial 

reuse, even if an alternative option is selected for final. 

o EPA provides no evidence for assertions that rulemaking under Subtitle C will 

not have an impact on beneficial reuse (see for example second sentence on p. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 2 of 46 

88). Clarify the basis for this assumption/view. EPA explicitly states “we are 

unconvinced that stigma alone will drive people away from the use of valuable 

products” (p. 88); there is evidence in the housing market that hazardous 

stigma does drive buyers away. Does EPA have evidence to the contrary to 

substantiate this assertion? If so, please cite the relevant academic studies. 

o All references to ACAA data (trends, totals, etc.) need to be updated to the 

2008 survey provided to OMB and available on the website.

o Are beneficially used materials considered hazardous in second life? Or will 

they be considered only solid waste since previously reused? Since this 

presents a major question as to the liability of the materials presented under 

EPA’s preferred option, this approach must be addressed in the preamble. 

 Damage Cases (p. 58 and throughout): The presentation of damage cases pursuant 

to CFR 261.11(a)(3)(ix) does not align with EPA’s presentation in the preamble. CFR 

explicitly states to denote “nature and severity” as factors, but EPA routinely 

aggregates all damage cases and provides little notation on severity. The discussion 

frequently diverges to wrap in potential damage cases as well, even when there is 

question as to the causality (“the improper management of waste containing the 

constituent”) or severity. Recommend EPA cite only proven damage cases.

o Use of MCLs in damage cases needs to be clarified whether these are CFR 

261 appendix I MCLs, current MCLs, or MCLs in place at the time of first 

documented damages. 

o Recommend adding appendix to document for proven damage cases current as 

of the rulemaking. Without such a compilation, readers will be forced to bundle 

together various documents (which will presumably all be in the docket). 

o P. 42 – use of damage cases as presented relative to 2000 determination offers 

no substantive information about new developments. 

o Specify damage cases are confined to 9 states. At least one of those states 

(MD) has since modified state regulations to enhance oversight of ash 

management. Other states may have also modified, but EPA has not compiled 

evidence to denote. 

 Manifesting: EPA estimates an additional 1.25 million manifests per year as a result 

of this rule. Need to verify BRS and RCRAinfo would have the capacity to manage this 

influx (as a matter of implementation). 

Subtitle C HW Requirements 

 Post-closure is required for 30 years. Assuming landfill lifetimes of 20 years, liability 

coverage does not jibe with EPA’s projected time-to-peak concentrations in RA models 

(t=70). 

Other Preamble Comments 

 Strike all references to “sham” recycling. This terminology does not present clearly 

what EPA’s intent is for the regulation. Please insert in lieu of phrasing distinguishing 

between encapsulated and un-encapsulated uses. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 3 of 46 

 Page 9, in the definition of beneficial reuse, can EPA better define “in excess 

quantities”? This definition may imply that cement/clinker feed are technically 

included. 

 CCR landfill definition includes quarries, sand and gravel mines, and pits. This would 

impact electric utilities in west that send waste back to sites that came from (p10), but 

the impacts do not seem to be captured in the RIA in terms of newly accrued costs to 

otherwise backfill quarries to meet topography requirements as regulated by SMCRA. 

 What is the basis for discussing “potential damage cases” when these are defined as 

“not been demonstrated” (Page 13)? These are all cases where either the results were 

ambiguous or causality cannot be established and should be removed from the factual 

conclusions presented in the preamble. Recommend complete removal of references 

to “potential damage cases.”

 Page 30, “This indicates that, while arsenic levels are typically well below the TC, risks 

from release in landfills and impoundments may still be high.” Please clarify what is 

meant by “high”. 

 Page 31 second paragraph says “a series of reports have been (or are being) 

developed...”: these are internal EPA documents. Need to determine status, 

relevance, and degree of incorporation. If referenced ORD reports are not yet 

complete, include ETAs. 

 Page 32-41, it is not clear why all this discussion on the draft leach testing is in the 

preamble. As this is a draft analysis the agency has not completed, it may be more 

appropriate to have a technical memo in the docket providing a description of the draft 

results and then discussing agency plans for releasing a formal draft for peer review 

and public comment. It seems that expert and public comments on this preliminary 

analysis will be quite helpful to the agency as EPA works to creating a draft document. 

The gist of the analysis is that some leaching may be underestimated. It also seems 

that EPA is not confident that the MCL and DWEL values are appropriate comparison 

points- again this is something that can be greatly informed by peer review and public 

comment. A short paragraph discussing potential implications would be best for the 

preamble. Discussion requesting comment and talking about the peer review path 

forward would also be helpful. 

 Page 36 footnotes 10 and 11 do not align with uses in text. Need to switch. 

 Page 52-55, as per comments on the risk assessment below, the level of detail 

provided regarding the RA conclusions should be enhanced. Please see comments 

above. Some other specific comments include: 

o Page 52 please make mention of where the response to public comments can 

be found 

o Please clarify that there is no typical cancer target level that EPA uses in listing 

decisions. EPA generally uses the 10-4 to 10-6 risk range for cancer. This should 

be clarified in multiple places throughout the preamble. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 4 of 46 

o Suggest replacing language that says “very high potential risks” and similar 

language (eg “still well above”, “well into the future”) with the specific risk 

finding (value and percentile risk that is referred to). 

o Please clarify that the draft fugitive dust screening is not in the 2009 risk 

assessment, but is a separate evaluation. Please also be clear throughout the 

preamble that this is a draft analysis. 

o As mentioned below for the RA, when discussing findings, EPA should also 

discuss any conservatisms/underestimates in the model assumptions so that 

readers can understand how well the RA findings represent true risks (at both 

the 50 and 90th percentiles). This information is very important for risk 

managers. Just giving the numbers allow without characterizing the 

assumptions is a major limitation that could be easily corrected. 

 Page 53 second paragraph: revise references to As as constituent with highest risk 

since this was the only carcinogen of concern in analysis. 

 Page 60/61: Consider adding two tables to this end of this section. The first table 

would be a comparative summary table of the proven damage cases in 2000, 2007, 

2009. Below is an example, where GW means a groundwater and SW means surface 

water. 

Location/Effect 2000 Damage Cases 

(10) 

2007 Damage Cases 

(24) 

2009 Damage Cases 

(27) 

 Human 

Health 

(10 GW) 

Ecological 

(0) 

Human 

Health 

(16 GW) 

Ecological 

(8 SW) 

Human 

Health 

(17 GW) 

(2 SW) 

Ecological 

(8 SW) 

Surface 

Impoundments 

(unlined) 

5 0 5 8 5 8 

Surface impoundment 

failure 

1 

 (liner 

failure) 

0 1 (liner 

failure) 

0 1 (liner 

failure) 

2 (SW) 

0 

Landfills (unlined) 2 0 4 0 4 0 

Sand and Gravel Pits 

(unlined) 

2 0 6 0 7 0 

The second table would provide, for the 27 proven damages cases of 2009, a 

summary of the major impacts of the damage case. For example, information may 

include the volume and/or size of the failure, number of affected people (if human 

health involved), mitigation efforts, mitigation costs, and other relevant information to 

provide a brief summary of the information contained in the supplemental materials on 

the damage cases. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 5 of 46 

 Page 63/65: should avoid presenting state survey data as percents and present as 

counts instead. Even more useful would be counts of total impoundments regulated 

under each criteria relative to the universe. 

 Page 64: please insert n for surveyed surface impoundment unit permits in second 

paragraph 

 Page 65: note on 30% of CCRs being unregulated by states is based on dated 

estimates of units, production, and state regulatory regimes. How would this be 

updated to fit the universe known today? 

 Page 66/Footnote 31: This language does not present any evidence/data on the 

change in raw number of coal-fired power plants. The text also dismisses distinctions 

between new facilities, new pollution units/technologies, and greater use of subbituminous coal which has a lower carbon content (thus greater ash content). 

Reference EIA data on coal consumption by type. 

 Page 67: please include a citation on origin of referenced disposal/utilization data. 

 Page 67, please ensure that the liner data presented is consistent with the 

presentation in exhibits 3A and 3B in the RIA. 

 Page 68 and elsewhere, as per comments on the RA, when discussing the agreement 

between the damage cases and risk modeling it would be helpful to be more specific in 

describing the correspondence between the two. 

 Page 69, it is unclear what EPAs conclusion regarding unencapsulated fill is based 

upon. Are the examples provided all proven damage cases? 

 Page 69: please clarify in explicit text whether “general fill” is inclusive of highway 

embankments (per FHWA/DOT) 

 Page 69: EPA says data was gathered on “mismanagement” at 140 sites. Why aren’t 

these considered damage cases? Was this alleged mismanagement or confirmed 

“mismanagement”? If these are not proven damage cases, recommend removal from 

preamble. 

 Page 70: reference to EU reuse – is this inclusive of uses EPA is not considering 

beneficial? If the beneficial use is relevant, EPA should insert discussion of EU 

regulatory structure that enables greater reuse rates. 

 Page 71 discussion of increased disposal should note disposal may increase the 

exposure estimated in the RA. 

 Page 72: rephrase usage of “chilling” and replace with “adverse” in last sentence of 

first paragraph 

 Page 73, should “RQ” be “HQ”? Please also clarify that 10-5 is not a bright line criteria 

for hazardous waste listings. 

 Page 74 last sentence: the conclusion presents faulty logic since technically no 

regulations were ever imposed. Presumably had a Subtitle D regime been 

implemented as presented as an alternative in this document, many if not all of the 

damage cases could have been avoided. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 6 of 46 

 Page 75: please explain what is meant by “shown to have catastrophic impacts on 

human health and the environment if not properly controlled”; would it be more 

accurate to remove “human health”? 

 Page 75: provide citation for “recent research indicates that traditional leach 

procedures may underestimate the actual leach rtes of toxic constituents...” 

 Page 75: replace “re-use of these wastes” with “re-use of these residuals” 

 Page 76: please insert language describing how EPA would address stigma per last 

sentence on pPage 75-6. 

 Page 79 and 80, please clarify that the “new science on metals leaching” is based 

upon a draft preliminary analysis. 

 Page 81: premature to call benefits “enormous” when agency does not attempt to 

quantify within the base proposal 

 Page 82: please state what number of proven damage cases involved large scale 

placement. 

 Page 86: are state beneficial use programs really distinguishing between “risks” or 

“hazards”? This seems to be an overstatement 

 Page 86: strike reference to “legitimate” beneficial use. Under EPA’s definitions there 

is not a need for this distinction, (nor is this term notionally defined within the 

preamble) 

 Page 88: please add clarifying language to the first sentence of the opening paragraph 

to better distinguish the discussion turns from CCR regulation to CCP regulation. 

 Page 109, please clarify that the fugitive dust analysis is a draft. It also seems unclear 

why EPA would be relying on such a preliminary “conservative screening analysis” 

(language from EPA’s description) to make a regulatory determination. It would seem 

that based on the screening analysis, EPA would then seek more site specific data to 

conduct a more refined analysis rather than going directly to a regulatory 

determination based on these conservative results. 

 Page 109: the 11 requirements used to list subtitle C wastes under 40 CFR 

261.11(a)(3) are linearly presented in the initial listing but diverge to group the 

characteristics in the discussion. From the public’s perspective in following the 

document, the more beneficial way to present this information would be to maintain the 

linear presentation. Such a presentation also affords the Agency the opportunity to 

adequately present evidence for each of the criteria. 

 Page 116, in describing the RfD, please use the true definition which takes the 

magnitude of uncertainty into account. 

 Page 117-118, and 205-208, in describing the effects of the metals, EPA has 

paraphrased information from the ATSDR documents and in some cases taken it out 

of context. We suggest that this section be re-written to more accurately reflect the 

likelihood of the effects at specific doses. For instance, the ToxFAQ for cobalt states: 

“Cobalt can benefit or harm human health. Cobalt is beneficial for humans because it 

is part of vitamin B12. Exposure to high levels of cobalt can result in lung and heart 
Interagency Working Comments on Draft Rule under EO 12866 

Page 7 of 46 

effects and dermatitis. Liver and kidney effects have also been observed in animals 

exposed to high levels of cobalt.” EPA’s characterization does not mention that these 

effects are seen at high doses, nor does it mention the beneficial effects. All this is 

important for risk managers. Thus we suggest revising each of the characterizations. 

EPA may also want to look at the endpoints used in the RfDs to see if they are 

protective of, or similar to, the endpoints that ATSDR mentions as being of greatest 

concern. 

 Page 120, states: “The data in Table 3 shows that many of these metals are contained 

in CCRs at relatively high concentrations, such that if CCRs were improperly 

managed, they could leach out and pose a substantial present or potential hazard to 

human health or the environment when improperly treated, stored, transported or 

disposed of or otherwise managed. The risk assessment that was conducted confirms 

this finding,..” Can EPA be more specific regarding how the risk assessment confirms 

this finding. Is it confirmatory for all the metals? 

 Page 121 states: “the risk assessment demonstrates that if CCRs are improperly 

managed, they have the potential to present a significant hazard to human health and 

the environment.” What does EPA mean by “significant hazard”? 

 Page 122-127, as previously mentioned, in characterizing the risk assessment it would 

be helpful to see: increased specificity in language, both the 50th and 90th percentile 

findings presented on equal footing, clarity about whether each exceedance likely 

represents a true risk, and EPAs confidence in each value. 

 Page 131/2 – mismanagement identifies potential damage cases as part of the 

reasoning; if these aren’t confirmed damages how are they relevant here? 

 Page 131 – references to antimony and thallium at LOC in RA but not in damage 

cases – consider addition of text indicating implication that RA is overly conservative. 

 Page 132 – the NPL listing discussion implies that all of the damage cases where NPL 

was applied were done solely due to coal ash. This is not the case. Amend language 

to indicate in some cases other chemicals of concern resulted in NPL listing (defer to 

damage case documentation/EPA on specifics). 

 Page 132/3 –indication that TVA did not manage waste in a manner consistent with 

industry practice. Evidence suggests size of unit and height/integrity of dike were all 

factors in the breach, and yet were not consistent with average industry practices. 

Language here should at least acknowledge TVA’s management may not be indicative 

of the broader universe rather than the broad presumption EPA offers which is that all 

impoundments are similar to TVA Kingston. 

 Page 133/4 – point (X) regarding action taken by other entities should be broken into a 

separate section . There’s no context given to indicate or even suggest the severity of 

the administrative orders and CAs cited. 

 Page133 – EPA provides implications for additive and synergistic effects, but those 

considerations are not built into the analysis because they are largely unknown. How 

then can this be considered a relevant factor in the “other” category? 

 Page 143 – specify timing of Congressional reference in final paragraph 
Interagency Working Comments on Draft Rule under EO 12866 

Page 8 of 46 

 Page 150, regarding fugitive dust controls, since EPA only conducted a conservative 

draft screen, is this requirement justified? Can EPA consider other regulatory options 

here- for instance site specific monitoring before requiring dust control measures 

based on the screening analysis which has not yet been peer reviewed? 

 Page 155 – clarify in discussion of existing HW landfill capacity that the annual 

capacity is significantly less; modifications to annual capacity would require 

modifications to existing permits 

 Page 158, can EPA better define a “reasonable probability of damage”? 

 Page 160 – EPA references the recent impoundment stability study saying issues 

were identified. If we can’t use the better data in the RIA, why is it mentioned here? 

 Page 170 – specify benefits of explicit federal permitting and enforcement and 

quantification used to note they “outweigh any identified disruptions of state 

programs...[etc]” 

 Page 182 – language in the 3rd paragraph implies surface impoundments are 

mandated to be closed under this rule. Should this be a reference to unlined units not 

brought into compliance? Or somehow otherwise clarified? 

 Page 183 – what is the rationale for the specific extension period created for time-toclosure? 

 Page 197, it would be helpful if EPA could clarify if the RQ’s are pre-existing values 

determined sometime in the past, or if these are new determinations made specifically 

for this rulemaking. 

 Page 198, EPA suggests a 1 pound RQ for CCRs based on mercury and arsenic. The 

justification for considering mercury is unclear as in the majority of samples tested, 

weren’t the mercury levels below detection limits? 

 Page 199 Table 3 – are the minimums reflected non-detects? If so, indicate as 

footnote. Basic statistics would benefit from addition of σi to table to better define 

distributions. 

 Page 204 third bullet – expand question on ben use beyond incentives to other 

mechanisms for expansion. 

 Page 205, in discussing public health impacts, this would be the correct place to 

discuss the confidence in how well the risk assessment predicts true arsenic and 

chromium risks. Please also clarify if the chromium risks are cancer or non-cancer 

risks. It was our understanding that chromium did not produce a cancer risk but it is 

mentioned in this section on cancer rates. There should be a similar discussion in the 

non-cancer risk section as well. 

 Page 206, please provide more clarity of what constitutes “near” when stating that 6 

million people live near affected coal-fired power plants. 

 Page 219, or in Section VII, please provide a table that summarizes the costs and 

benefits of the preferred option and the alternative options. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 9 of 46 

Comments on RIA 

The EPA’s Regulatory Impact Analysis makes use of a broad set of data about baseline coal 

combustion residues (CCR) disposal facilities, their engineering controls, and existing state 

law. The scope and depth of the data EPA has assembled is impressive and provides the 

base for what we hope will ultimately be a comprehensive analysis of the costs and benefits 

of alternative approaches for regulating disposal of CCR, as required by EO 12866 and OMB 

Circular A-4. However, the current RIA does not yet appropriately quantify the benefits and 

costs of alternative regulatory approaches, as detailed in the following comments. 

1. EPA has not quantified the human health benefits. To comply with OMB Circular A-4, 

EPA should, at a minimum, estimate the total number of cancer cases expected to be 

averted by the rule. This calculation will require information about the population of 

well water drinkers within the 1-mile radius from a CCR disposal facility for which EPA 

estimated a distribution of cancer risks in its Risk Assessment (RA). Attached is a 

spreadsheet with a rough calculation by OMB of cancer cases averted. Discounted at 

an annual rate of 3%, we estimate that the proposed rule will avert 0.5 cancer cases at 

a cost-per-life-saved of $59 billion. 

2. What EPA calls “Community Safety Benefits” would be more accurately termed 

“Benefits from Avoided Cleanup of Spills,” as that is what is quantified. The term 

“Community Safety Benefits” is too broad, since it conceptually would include the 

“Health Benefits” which are in a different category. 

3. EPA’s quantification of the Benefits from Avoided Cleanup of Spills (pp. 148 – 160) 

uses baseline predicted case frequency and damages per case estimates that are not 

appropriately matched. The damages per case of 103 acres x $3.4 million to $4.4 

million per care = $350 million to $453 million is based on averaging just two historical 

cases: the unprecedented Kingston TVA spill in Dec. 2008, which released 10 million 

tons of CCR, and a much smaller, probably more typical spill of 80 tons of CCR. The 

frequency of 31% of known cases involving surface water, wetlands, and dust 

requiring cleanup x 1.08 cases per year is based on the 66 cases that occurred from 

1948 to 2008. The implicit assumption that justifies multiplying these frequency and 

damage-per-case numbers is that the damage-per-case estimate was the average 

damages per case in the historical damages cases from 1948-2008. Because the 

damages per case estimate is the average of just two of those cases, including what is 

undoubtedly by far the largest of the historical cases, it is biased dramatically upwards. 

Another problem is the earlier period going back to 1948 is a poor proxy for the 

baseline frequency of damage cases in the future as there are far more CCR disposal 

units now (leading it to be downward biased) but better engineering controls now 

(leading it to be upward biased). 

A better estimate would be to take only the last 20 years (1988-2008) and estimate the 

cleanup costs associated with each damage case in the last 20 years (this will require 
Interagency Working Comments on Draft Rule under EO 12866 

Page 10 of 46 

judgment by the EPA’s analysts to put a dollar figure on each case based on the 

quantitative and qualitative information EPA has about each case), average those 

damages, divide by 20, and use that as the expected baseline annual cleanup costs. 

4. EPA is implicitly assuming that the proposed rule will eliminate all future damage 

cases. What is the justification for this assumption? A better way to calculate the 

reduction in risk of damage cases resulting from the rule would be to calculate the 

frequency of damage cases per CCR disposal facility in states that have robust 

engineering control requirements and in states that have relatively loose engineering 

control requirements. The effect of the rule is likely to be to lower the frequency of 

damage cases in states with loose CCR regulations to the level of that of states with 

robust CCR regulations. 

Another way to look at the effect of the rule is to focus on the phasing out of surface 

impoundments. The rule may thereby reduce the risk of spills at surface 

impoundments but have little effect on the risk of damage cases at landfills. If that is 

right, then the estimate of the Benefits from Avoided Cleanup of Spills (pp. 148-160) 

should model that appropriately. 

Whatever the best approach is to estimating the risk reduction caused by the proposed 

rule, EPA should spell out the logic, the underlying assumptions, and the justification 

for these assumptions. 

5. The EPA should incorporate estimates of the loss of beneficial use from designation of 

CCR as hazardous under state laws prohibiting beneficial use of hazardous wastes 

should be presented in the main estimates of costs, not as a “Sensitivity Analysis” on 

pp. 133-134, as the best estimate of the costs of the rule includes this reduction in 

beneficial use. 

The EPA has not considered a range of regulatory approaches, including more and less 

stringent alternatives, as required by A-4. Rather, it has considered only whether to use 

subtitle C or subtitle D to establish the same set of regulatory requirements. In addition to 

considering whether subtitle C or subtitle D is more appropriate for CCR, EPA should 

consider a range of engineering control requirements, including a relatively minimal set of 

requirements, as well as a stringent set of requirements, and estimate the costs and benefits 

of each of these alternative approaches. Such an analysis is essential to compliance with EO 

12866 and A-4. 

RIA – Benefits

 Damage cases – reliance on potential but unproven damage cases overstates likely 

damages throughout, particularly since the context of these cases is removed from the 
Interagency Working Comments on Draft Rule under EO 12866 

Page 11 of 46 

discussion altogether. That is, there are no reference points for quantities of ash, 

exposures, or risks from the damage cases. At the very least the terminology 

throughout the documents often dispenses with “potential” damage case and lumps all 

cases together, “potential” and “proven”. This distinction should be maintained 

throughout. Exhibits 7A and 7B should be broken into these distinctions. A column 

specifying this should be added to Exhibit 7E’s unit-by-unit summary. 

 Exhibit 3H: where are the unit values for mercury and lead coming from? They are not 

in the referred citation. 

 Page 161, characterizes the central tendency estimate as one that represents typical 

conditions. This seems to be an oversimplification of what EPA has done in the risk 

assessment for CCW as the many assumptions used likely lead to an overestimate of 

risk even at the 50th percentile. Please clarify. 

RIA – Beneficial Use and EJ 

 Universe of impoundments in RIA accounts for less than half of the impoundments 

identified in the CERCLA action. Can EPA clearly acknowledge this deviation in the 

uncertainties? 

 Beneficial Use Assumptions: Beneficial use assumptions/definitions/affected 

industries include minefill, which EPA programmatically has excluded from the 

definition of beneficial use. Based on ACAA estimates, assumptions need to be 

revised to 38% beneficial use in 2007 (49.3 M tons). 

 Ch. 5 ZCTA references: p.100 and subsequent discussions referencing zip code 

populations must clearly delineate these are ZCTA-based, not zip code based. While 

Census loosely bases ZCTA on USPS zip codes, the two are often not equal and the 

terminological differentiation is important for readers to understand. 

o Populations in Ch. 5: use of ZCTAs does not acknowledge or characterize 

spatial variation among coal-burning codes. Why did EPA not conduct the 

analysis at the census tract level. 

 EJ Analysis: For the analysis of children as well as the analysis of minority and lowincome populations, has EPA had this approach peer reviewed? If not, we suggest 

referring to the analysis as draft, requesting specific comment on the analysis, and 

planning a robust peer review of the approach. 

 EJ Analysis: the discussion presents descriptive figures only and lacks any relevant 

statistical analysis. Are the differences identified for low-income and minority ZCTAs 

statistically significant (or is the variance from the state average significant in coalpresent ZCTAs?)? 

 EJ Analysis: the summary is clear to draw a distinction between ceasing surface 

impoundments and geotechnical requirements on landfills. Those impacts would not 

be universal or equally distributed across states and clearly EPA recognizes that, but 

the methodology estimates by facility not by operable units. How does the transition 

from SIs to landfills distributionally impact children, minorities and low-income? That is, 
Interagency Working Comments on Draft Rule under EO 12866 

Page 12 of 46 

if the locational data were disaggregated to distinguish between disposal method, is 

there a noticeable distinction in the descriptive results presented by EPA? 

 No apparent analysis of adverse impacts of beneficial use market on small 

businesses. 

RIA-Sensitivity Analysis 

 Ben Use Market Stigma: Are there any studies from HQ universe EPA could use as a 

proxy to determine likely impact? Given this is the preferred management practice 

identified by the agency, potential impacts from the selected option have broad policylevel impacts here. 

o Scenario 3 (pp.132-3) claims 33% loss under option 3 but doesn’t include an 

impact for wallboard. 

o Ben use Scenario 4 (pp. 133-4) is a certainty based on existing state 

regulations. This loss of beneficial use should be quantified and incorporated in 

the RIA. 

 Trending of beneficial use rates is problematic. The projections incorporate minefill 

and large fill operations, which EPA is not determining to be beneficial use. 

 Discussion of future trends in ash production is minimal (note increase in subbituminous coal utilization concurrent with increased use of scrubber/abatement 

technologies). Would benefit from a presentation of EIA coal use and ACAA/ARIPPA 

ash production rates together to derive ash content, then consider that as a proportion 

of EIA-projected coal consumption. 

 P.134 scenario #5 cites an average annual rate of change of CCR beneficial use of 

5.7 percent between 2001 and 2009. If this is a reference to the linearly trended data 

on p.53 it overstates the rate of growth in beneficial use and should clarify the 

distinction between a rate of change in rates and a rate of change in total quantity reused. 

 Section 6D re impacts on HW landfills – discussion implies impacts would only occur if 

beneficial use markets adversely affected. However, there are a number of other 

circumstances that would likely result in additional use of HW landfill capacity, such as 

corrective action incidents. This section should acknowledge additional scenarios 

which may result in stressors on HW landfill capacity. 

 State technical and administrative burden estimates are strikingly low given the 

volume and universe of TSDs added to the regulatory regime under Subtitle C. How 

EPA derived these estimates is not clear. Please insert text providing the basis for the 

estimates offered. 

Draft Risk Assessment (dated Aug 31 2009) and Response to Peer Review Document 

Comments 

 In many places, in all the documents, EPA states that the point of departure for a 

hazardous waste listing is 10-5. It is unclear why EPA insists creates this bright line. The 
Interagency Working Comments on Draft Rule under EO 12866 

Page 13 of 46 

typical cancer risk range evaluated is 10-4 to 10-6. While the dye and pigment proposal 

discusses EPAs policy, this discussion does not include the creation of a bright line at 10-5

but instead discusses the many factors that are considered in the evaluation. Suggest 

revisions to this language throughout both documents (as well as the RIA and preamble). 

The focus should be on the range of acceptable risks (10-4 to 10-6). More recent OSWER 

rules have used language that does not create this bright line and could be referred to for 

providing template language (eg FO19 wastes). We suggest this language be used in the 

risk assessment, preamble and RIA.

 Throughout the executive summary (and then the preamble of the proposal), the language 

is not as specific as it could be regarding findings. Similar changes are suggested for 

section 4.5 (summary and conclusions). 

o For example, the following edits are to some language on page E4. We would like 

to see similar clarifying edits throughout the exec summary as much of the 

language is not specific enough.“CCW risk assessment results at the 90th 

percentile suggest that the management of CCW in unlined or clay-lined WMUs 

result in risks greater than the risk criteria of 10-5 for excess cancer risk to humans 

(90th % cancer risk of XX for arsenic) or an HQ greater than 1 HQ for ecological 

effects to both human and ecological receptors (90th % HQ for humans of XX for 

chemical X, 90% HQ for ecological effects of XX for chemical X). At the 50th

percentile the risks were XXXYXYYYY). While still above the criteria( give specific 

90th and 50th percentile values for human health and ecological effects), clay-lined 

units tended to have lower risks than unlined units. However, it was the compositelined units that effectively reduced risks from all pathways and constituents below 

the risk criteria.” 

o Similarly, EPA should clarify that the risks are for codisposed wastes and discuss 

that they are lower by a factor of X when there is not codisposal. 

o Similarly, when talking about the time it takes to reach peak concentrations, more 

specific language should be used. EPA should always specific the percentile they 

are referring to and for example, instead of saying “less than a 100 years” provide 

the specific value and the 50thile. 

o EPAs discussion of uncertainties is very helpful. We suggest expanding this to 

include discussion of major assumptions and the impact these assumptions likely 

have on the overall risk characterization. 

o EPA should also have a discussion in the exec summary characterization section 

and conclusion section that discusses whether or not these risk values are likely 

true risks, overestimates, or underestimates (see more specific suggestion belowa summary of this section should be in the exec summary). 

 The risk assessment is missing a critical section which evaluates how confident EPA is 

that the numbers represent a realistic scenario or true prediction of risk. This could include 

a discussion, not only of the uncertainties, but also a discussion of all the assumptions 

made (eg were they overestimates, best estimates, or likely underestimates) and 

discussion of whether EPA thinks a HQ of, for example, 2 or 20 represents a true risk for 

the groundwater to drinking water and gwater to surface water pathways. For each 
Interagency Working Comments on Draft Rule under EO 12866 

Page 14 of 46 

chemical for which there is an exceedance of a risk threshold there should be this 

discussion. For the HQ exceedances (eg thallium, Molybdenum, nitrate, cobalt, boron, 

selenium, cadmum and lead), there could be a generic discussion of the 

assumptions/inputs and possible conservatisms and then for each chemical, EPA should 

discuss the specific health benchmark that was used and what impact that may have on 

the outcome. For instance, EPA has always said the RfD values are generally health 

protective. OMB can provide standard language that EPA has used in the past regarding 

this discussion. If a particular chemical has uncertainty factors of 3000 applied, and IRIS 

has low confidence in this value, if the HQ is 30, EPA may want to discuss how this may 

not represent a true risk. Similarly for the values above 10-5 (the arsenic values) EPA 

should also discuss their confidence in this value and its likelihood of representing a true 

risk. This discussion should be added for both the human and ecological receptors. This 

discussion is very important for the risk managers. Bringing it forward to section 4.5 is of 

critical importance

o Some of the possible conservatisms we noted in the risk assessment that could be 

part of this discussion include: 

 Use of 100% As+3

 Assumption that all metals are 100% bioavailable to ecological receptors 

(what about bioavailability to ground and surface water?)

 Inputs on landfill/impoundment types are from 1995 and technologies have 

improved

 All waste units were assumed to be at the property line

 Compaction of landfill wastes over time was not considered

 EPA used a well distance distribution that is protective for LF and SI

 All receptors were assumed to be in the plume

 Assumed all water ingested came from wells

 Adult angler data were used for children

 Cancer slope factors are upper bounds on risk- true risk could be zero

 Treatment of non-detects as being 1⁄2 the detection limit (impacts 50%ile 

risks)

 For ecological endpoints 90th percentile waste pore water values were used.

 As a footnote to all the tables please clarify that values are only presented for chemicals 

that exceed a risk criteria. Otherwise, readers won’t understand why, for example, table 

ES-2 only presents arsenic values. 

 In table ES-3, its not clear why the arsenic +3 and +5 values are the same for the 

codisposed scenario.

 Page ES-9 states that the risk results are largely consistent with the damage cases. It 

would be helpful if EPA did more to clarify the exact comparison that was made. 

 Has EPA created a summary of public comments and a response to these comments? 

Similar to the document created for the peer review comments, this would be very useful. 

Alternatively, EPA could respond to public comments on the risk assessment in the 
Interagency Working Comments on Draft Rule under EO 12866 

Page 15 of 46 

preamble, but it may be cleaner to keep it separate. On page 1-1 it would be helpful to 

mention to readers where the response to public comments can be found.

 Section 1.3.3, where EPA presents the risk criteria, please also mention that EPA 

evaluated the cancer risk range of 10-4 to 10-6. Throughout the document, wherever EPA 

mentions that the risk criteria were exceeded, EPA should also provide the specific cancer 

risk value and the percentile of the distribution that it references. 

 Section 1.3.5, it would be helpful here, or perhaps elsewhere, if there was some 

discussion regarding the prevalence of codisposed CCW and coal refuse verses typical 

conventional CCW disposal. 

 Page 3-4 suggested edits: 

o “At exposures increasingly greater than the RfD, the potential for adverse health 

effects may increases although this potential cannot be quantified.” 

o “The CSF is an upper-bound estimate (approximating a 95 percent confidence 

limit) of the increased human cancer risk from a lifetime exposure to an agent. 

Because this is an upper-bound estimate, true risk is likely lower, and could be as 

low as zero.”...

 Page 3-6, more clarity in the CSCL discussion would be helpful. What is the source of 

these values? Are they peer reviewed? Are they conservative screening values? What 

did the expert reviewers on the risk assessment say about this approach? 

 Can EPA provide any discussion on whether the arsenic found in groundwater is 

expected to be of the +3 or +5 speciation? Similarly, what about the different forms of 

selenium? These discussions would be informative to add to section 4.1.1. 

 More detail on the development of the surrogate risk attenuation factors and how they 

were used would be helpful. Was there a specific charge question that asked the peer 

reviewers to comment on this approach? If so, were reviewers supportive? More 

discussion on whether exceeding a HQ of 1 using this approach represents a true risk 

would be helpful. It’s not clear if this approach is health protective or perhaps 

underestimates true risk. 

 Damage case comparison/review:

o EPAs comparison of the risk assessment results to the damage case findings 

seems to be a bit too simplistic. Instead of simply providing just a check mark for 

whether or not a damage case showed the effect (human health, cosmetic or state 

std exceedance) in at least one damage case, it would be useful to provide the 

number of damage cases that showed this (eg say 4/16 if 4 of 16 of the damage 

case showed something). It would also be helpful to clarify if the landfill or 

impoundment was lined or unlined in the damage case. This simple change will 

provide a lot more information to the decision makers and will more fully inform the 

comparison.

o In addition, the response to comment shows only the table at the 90% percentile, it 

would be helpful to see a similar table comparing the 50th percentile risk results.
Interagency Working Comments on Draft Rule under EO 12866 

Page 16 of 46 

o Page 4-24 talks about chemicals where the damage case assessments and risk 

assessment agree and disagree. More clarity on how EPA is defining agreement 

would be helpful here.

 Figure 4-1, it is not clear that the correct speciations are provided for arsenic and 

selenium. 

 Section 4.2.5, in the discussion of ecological damage cases, a discussion showing a 

comparison to the risk assessment results (as was done for human health) appears to be 

missing. 

 Page 4-38, this states that ecosystem degradation is proceeding at an unprecedented 

rate. For such a strong scientific statement, it would be helpful if EPA added a citation. 

 As suggested by the peer reviewer (section 8.3 of the peer review report), providing the 

full distribution of probabilities, as well as the final cancer risk over the Monte Carlo 

generated distribution of risks and discussion of this value, would be helpful and 

informative to risk managers. While EPAs risk characterization handbook does not require 

this, it is unclear why this would be a rationale for not presenting informative information, 

which EPA has, which is recommended by the expert reviewers. Perhaps presentation in 

an appendix would be helpful. 

Comments on the Fugitive Dust Analysis 

 It would be helpful to clarify in the analysis that this is a draft document that has not been 

peer reviewed. We recommend that EPA talk about the peer review plan and explicitly ask 

for comments on the analysis. We hope that the peer review will be complete before any 

final rule relies on this analysis. We would be happy to work with the EPA to ensure that 

the charge to reviewers is sufficiently robust to inform the use of this draft analysis in a 

rulemaking. 

CEQ Staff Comments 

General Concerns:

Lack of meaningfully different alternatives for CCR regulation (general comment): The three 

alternatives proposed by EPA for CCR regulation all require the same engineering controls, 

leading to costs (and presumably benefits) that are extremely similar. There is minimal 

discussion of other options that might provide a more meaningful alternative to the proposed 

regulations. Are there intermediate regulatory options and/or better enforcement of existing 

regulations that could achieve most of the benefits at lower cost? It would be helpful to see 

more consideration and analysis of any feasible intermediate options. 

In particular, the land disposal treatment standard “sub-option” seems to contribute >75% of 

the costs of the regulation. How integral is this component to the overall proposal? What 
Interagency Working Comments on Draft Rule under EO 12866 

Page 17 of 46 

benefits does this sub-option result in by itself? How much would be lost if the sub-option 

were not included? Presenting separate cost estimates with and without the sub-option 

seems to imply that land disposal treatment is “optional,” but I am unable to confirm from the 

text of the preamble whether or not this is really the case. 

Bottom Line: 

 it will be very expensive to regulate CCR with likely little environmental benefit based 

on what has been presented thus far 

o less expensive approaches could include enforcement of annual inspections 

which would provide much greater environmental benefits relative to those 

proposed 

 approximately 2.5 million tons per year currently managed as subtitle C hazardous 

materials for disposal, this rule would add on the order of 130 million tons per year to 

this inventory 

o current waste management industry likely does not have the capacity to 

effectively manage such a volume of waste on top of what it already manages 

o likely some facilities be required to shut down temporarily, or permanently, due 

to the lack of viable hazardous waste disposal options 

Practicality Issues:

Dire Limits to Beneficial Uses of CCRs:

 EPA will likely limit any exclusion from hazardous waste regulation for only those 

beneficial uses that involve full encapsulation of CCRs into a finished product 

o It’s not clear if end-of-life disposal of encapsulated materials will have to be 

treated as hazardous 

o Other existing beneficial uses such as those involving land application or other 

unconfined uses such as structural fill, agricultural use, soil amendment will 

likely be subject to hazardous waste regulation 

Poor Ability for Industry to Meet Subtitle C Compliance:

 De Minimis CCR releases, such as permitted fugitive emissions, process related 

releases, transportation releases, and process/transportation remainders would 

constitute improper hazardous waste disposal and subject facilities to non-compliance 

 Accidental releases during handling operations would be subject to hazardous waste 

clean-up 

 Dewatering operations and waste streams would require hazardous waste treatment 

o Leachate management would have to approach a zero tolerance level 
Interagency Working Comments on Draft Rule under EO 12866 

Page 18 of 46 

 However, the waste streams likely of most concern are those produced 

during equipment maintenance and water purification, such as metal and 

boiler cleaning wastes 

 treatment options are available for these wastes that would render them 

nonhazardous without major costs or disruptions to the utilities 

 Existing management and storage units, such as baghouses, precipitators, scrubbers, 

hoppers, containers, sumps, and related devices would be subject to meet hazardous 

waste compliance 

o retrofitting existing units not well discussed in the proposed rule 

o It’s not clear if end-of-life disposal of encapsulated materials will have to be 

treated as hazardous 

 Off-site disposal would likely be required for many facilities to manage subtitle C CCR 

due to the inability of on-site capacities to meet demands 

o Transportation issues are high (vehicles to handle are special, attendants 

require training and must conduct very specific safe-handling operations) 

 Current workforces in affected industries would be required to meet hazardous 

material worker protection/training requirements (power plants, drywall manufacturers) 

o Health threat to employees – need re-evaluation and new program 

implementation for worker protection to meet subtitle C compliance 

How the current impact analysis by EPA reflects issues such as those listed in this section is 

not clear. Do EPA estimates include the full scope of subtitle C regulation, including the cost 

of closure of existing sites not in compliance with subtitle C? Moreover, the Federal and 

state roles for control and enforcement are not clear at this time. 

Recommendation: The Agency should re-examine if Subtitle C regulation is warranted, in 

accordance with Section 3004(x) EPA, and focus in on the special characteristics of such 

waste, the practical difficulties associated with implementation of such requirements, and 

site-specific characteristics. 

Specific Comments:

Baseline beneficial use (RIA section 3B):

p. 51-52: Are the costs of transporting CCR (or any other costs that may be incurred by 

displacing other materials with CCR) reflected in the economic analysis of beneficial use? 

p. 55 (exhibit 3H): The GHG benefits should be monetized using the interagency-approved 

SCC range of estimates. 

p. 55 (exhibit 3H): The inclusion of energy and water costs along with air and water pollution 

costs in this table is confusing. The reduced air and water pollution costs are the 

environmental externalities associated with beneficial reuse. Energy and water are inputs 
Interagency Working Comments on Draft Rule under EO 12866 

Page 19 of 46 

with market prices, and their costs are already implicitly reflected in the estimates of the 

economic benefits of beneficial use in exhibit 3E. It is misleading to summing up the avoided 

water and energy costs along with avoided air and water pollution costs to come up with a 

total estimate of environmental benefits. Energy and water should probably be removed from 

exhibit 3H, but if they are left in, they should not be monetized and summed with the pollution 

costs. The total monetized environmental benefit would then sum up to $19.6B, not $24.6B. 

This issue comes up again on p. 135 in the discussion of the impacts of the rule on beneficial 

use. The estimate of baseline beneficial use economic and environmental benefits seems 

incorrect—seems like it should be $21.9 billion ($19.6B envir + $2.3B econ), not $24.6B. 

Impact of rule on beneficial use (RIA section 6C): We agree that it is important to ensure that 

rule does not have a negative impact on beneficial use, e.g., through triggering state 

restrictions on reuse. However, if beneficial use is not explicitly restricted under federal or 

state law in response to a subtitle C designation, it seems likely that beneficial use will 

increase as a result of the rule because regulated firms will have an incentive to promote 

beneficial reuse and lower the selling price of CCR (even to zero or below) in order to avoid 

costly treatment and disposal. EPA acknowledges this possibility but does not quantify this 

potential impact. By quantifying three other scenarios in which regulation has a negative 

impact on beneficial use, the BCA gives the impression that a decrease in beneficial use is 

the most likely outcome. 

Would it be possible for EPA to do a quantitative analysis of the impact on beneficial reuse 

under the scenario in which cost-avoidance causes an increase in beneficial use? E.g., EPA 

could examine how the proposed reg would change the price at which regulated firms sell 

CCR, or perhaps make the simplifying assumption that regulated firms give away CCR at no 

cost, and determine the impact on beneficial use. Additional discussion on the barriers to 

increasing beneficial reuse would be helpful here, since based on the cost data provided by 

EPA, it seems like it would be economic to reuse virtually all CCR, but clearly that is not 

happening. 

On p. 131, EPA notes that ACAA claims that a designation of CCR as hazardous waste will 

stigmatize beneficial uses. Did EPA also gather information from the users of CCR to gain 

insight into whether they would, in fact, reduce their use of CCR in response to a subtitle C 

designation? The ACAA may not be an unbiased source of information on this point. 

Benefits analysis (RIA chapter 7): We acknowledge that monetizing the benefits of avoided 

land and water contamination is a complex analytical challenge. With that in mind, it is 

important to provide a robust benefits analysis that gives some quantitative indication of what 

impact the proposed regulation is likely to have on CCR-related contamination. The benefits 

chapter only provides a partial quantitative estimate of the baseline damages from current 

CCR management practices—with no indication of how those damages would change if the 
Interagency Working Comments on Draft Rule under EO 12866 

Page 20 of 46 

proposed regulations were implemented. Using baseline damages as a benefit estimate 

implies that the regulations would completely eliminate the risk of catastrophic releases or 

ground/surface water contamination, but EPA does not present any evidence to support such 

a claim. The salient question is, what is the estimated impact of this rule on the risk of a 

catastrophic release or water contamination? The BCA provides no sense of the extent to 

which the regulations reduce these risks, and how the three proposed options differ in their 

impact on risk. 

In addition, the discussion of benefit categories is confusing. “Community benefits” are not a 

distinct category apart from health and ecological benefits. We understand that it is difficult to 

estimate health and ecological impacts and that EPA is using damage cases to proxy for 

partial benefits. However, it is not accurate to label avoided damages as a separate benefit 

category called “community benefits.” In theory, if health and ecological damages could be 

accurately estimated, summing them up with community benefits would be double counting. 

We recommend that EPA first discuss conceptually the categories of benefits that the rule is 

expected to yield (e.g., health, ecological, aesthetic). EPA can discuss why it may not be 

possible to estimate each benefit category empirically. EPA can then follow up with the partial 

empirical estimate of benefits based on damage cases, explaining that this estimate includes 

some aspects of health and ecological damages but is by no means comprehensive. 

Army Corps of Engineers 

Comments on Section V, C - Special Requirements for Stability of CCR Surface 

Impoundments:

- two approaches for assuring structural stability are mentioned: an alignment with the MSHA 

Standards (which seems appropriate) and alignment with NPDES Permits (does not seem 

appropriate as impoundment structures do not lend themselves to the simple compliance 

techniques that NPDES relies upon). 

- the section indicates that federal agencies, including the Department of Defense, were 

coordinated with and I was not aware that this occurred. 

- the suggested size limitations on what constitutes a jurisdictional structure appear 

appropriate 

- the requirement for periodic inspections every 7 days is excessive and unnecessarily costly: 

recommend MSHA inspection frequencies be followed 

- regulatory responsibilities, particularly by the state for non-federal impoundments, are not 

clearly defined. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 21 of 46 

Department of Energy 

1. General Comment 

Significant data exist on the environmental effects of current disposal and utilization practices 

involving coal combustion residuals (CCRs). DOE believes that EPA should emphasize the 

results of real-world data when considering any regulations involving CCRs. Technical data 

that DOE used to support past analysis were obtained from studies in which the National 

Energy Technology Laboratory (NETL) played a direct role, either through in-house research 

or funding of external research projects. DOE continues to believe that the regulation of 

these practices under RCRA subtitle C as hazardous waste is unwarranted, and supports the 

continued collection of information to help resolve EPA’s concerns regarding CCRs. 

The Risk Assessment (RA) further confirms that improperly lined units are the prime cause of 

environmental damage and human exposure, including certain non-encapsulated uses (sand 

and gravel pits) as well as unlined surface impoundments and landfills. As more evidence is 

gathered, this position is further solidified. DOE is in agreement that these units that lack 

liners and show potential problems should no longer be used. 

EPA ruled in 2000 that a Subtitle C designation was unwarranted, and all available evidence 

supports the conclusions made at the time. Continued evidence does show that unlined units 

have caused environmental damage; however, the promulgation of this Subtitle C regulation 

to treat all CCRs as hazardous waste does not appear to be justified, especially when, as 

mentioned by EPA in the preamble, the disposal practices at power plants have shown a 

history of improvement and are continuing to improve. The benefits of CCR regulation under 

Subtitle C are not apparent and DOE urges EPA to fully understand the implications of such 

a regulation before going forward with the current proposed designation. We appreciate the 

opportunity to comment and look forward to working with you to improve regulatory solutions 

to this issue. 

2. Preamble, Page 63, Joint EPA/DOE Study, 1994-2004 

In the Regulatory Determination (RD) of 2000, which DOE agreed with, EPA decided to 

regulate CCRs as a Subtitle D waste, stating that “The Agency has determined that industry 

practices are moving toward increased use of control measures (liners, covers, etc.) and 

groundwater monitoring.” This statement is further reinforced by the 2006 joint DOE/EPA 

report1

 on recent disposal practices. The 2006 report found that 97% of newly permitted 

landfills and 80% of newly permitted surface impoundments require groundwater monitoring, 

compared to 88% of landfills and 65% of surface impoundments permitted between 1985 and 

1994. Similarly, virtually all newly permitted facilities included appropriate liners – 55 of 56 

surveyed units, with one surveyed landfill receiving inert bottom ash that the state determined 

did not need a liner. This compares with liners installed in 75% and 60% of those landfills 

                                                           

1

 Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994-2004. Available publicly 

at: http://www.osti.gov/bridge 
Interagency Working Comments on Draft Rule under EO 12866 

Page 22 of 46 

and surface impoundments, respectively that were established between 1985 and 1995, 

which appears to be the timeframe which is the source of EPA’s concern. 

Despite the indication of better disposal practices, the proposed rule advocates Subtitle C 

regulations. This is in direct opposition to the 2000 RD that Subtitle C regulations were 

unwarranted, when EPA determined ”that it is unlikely that Subtitle C would effectively 

address the problems associated with the four large-volume fossil-fuel combustion wastes 

without imposing unnecessary controls.” 

3. Preamble, Pages 63-65, Joint EPA/DOE Study, 1994-2004 

The statistics cited regarding the number of states covered in the joint EPA/DOE study is 

misleading. Although it is true that this report “only provided a review of 11 states”, it is more 

important to note that, by using coal fired generation capacity as a proxy, the 56 units 

surveyed encompass at least 63% of the total universe of new or expanded units. Similarly, 

on Page 65, the percentage of states requiring groundwater monitoring, liners, etc., are 

mentioned, but not the percentage of impoundments. 

4. Preamble, Page 71, Effect on Beneficial Uses of CCRs 

Despite EPA’s assumption to the contrary, there are strong possibilities that the Subtitle C 

regulation would cause significant harm to the beneficial-use industry. Indications from 

industries, which use CCRs, are that a Subtitle C declaration would severely hamper 

beneficial-use applications. Utilities will be unwilling to sell what is in some situations a 

hazardous material, whether it maintains the Bevill exemption or not. Similarly, companies 

that sell products using CCRs fear the stigma created by such a designation would lead to an 

undesirable product and may lead to potential lawsuits over the use of a hazardous material 

in their product, even if there is an exemption for encapsulated uses. The movement away 

from beneficial uses of CCRs would also cause a larger volume of material to require 

disposal, placing greater pressure on those units, which are currently being used, and 

causing more units to be permitted. 

In general, the CCRs currently being used for commercial purposes are from plants that are 

located in close proximity to the users. For many plants, the high transportation costs make 

commercial utilization of their CCRs totally uneconomical. In many cases, the quality (e.g., 

high carbon content in fly ash) of CCRs is such that they cannot be utilized commercially. 

There is no mention of any type of beneficiation technology (e.g., carbon burnout or mercury 

removal) in order to use material that is currently unsuitable, and more importantly, the cost 

of upgrading the material for use is not considered in the provided cost analysis. 

EPA needs to address the concern regarding an increased number of landfills due to a 

potential reduction in beneficial uses in its RA. Such an assessment should include the 

expected reduction, as acknowledged by EPA, in the non-encapsulated uses. 

5. Preamble, Page 139, Subtitle C Approach (Proposed Approach) 
Interagency Working Comments on Draft Rule under EO 12866 

Page 23 of 46 

This section lists the requirements that would be covered by the proposed regulation. It 

appears that one important area that has not been addressed is the effect of classifying 

CCRs as hazardous waste on plant operations. Certain amounts of CCRs may be released 

during the normal operation of a power plant. This includes releases from the emission 

control equipment or storage vessels, releases during maintenance operations, etc. In many 

cases, releases from such operations may cause CCR-laden dust to be present on the 

equipment/structure surfaces throughout the plant. There may also be special requirements 

associated with maintenance personnel entering ash or flue gas handling equipment. In 

addition, certain unexpected issues, such as ash leftover after delivery to a landfill in 

transportation vehicles, may become problem areas. The EPA’s risk assessment document 

(EPA530-D-09-001) has not addressed whether there are risks involved with the above plant 

activities that would justify a classification of CCRs as hazardous wastes. The cost estimates 

provided by EPA do not assign any costs associated with addressing the above issues by the 

plants. 

6. Preamble, Page 153, Beneficial Uses 

The EPA proposes to maintain the Bevill determination for CCRs used beneficially. Based on 

this, CCRs being used beneficially will be exempted from the proposed regulation 

requirements from the point of the generation of these CCRs to the point they are beneficially 

used. This implies that if CCRs from a power plant were being transported to a landfill, the 

plant would be subjected to hazardous waste requirements However, if the same CCRs are 

transported to a facility utilizing CCRs for commercial purposes, then these requirements are 

waived. EPA has not addressed the issues of CCRs being stored and handled at the place 

of beneficial uses, which may not be any different than the storage and handling at the point 

of origin. It appears that the main area of concern with CCRs is their storage in landfills or 

impoundments and that this concern can be addressed with the requirements of liners, etc., 

without a classification under hazardous waste. 

7. Preamble, Page 215, Estimated Cost of Baseline CCR Disposal and RIA 

The cost estimates provided in RIA do not include costs for storage design and operating 

standards. For certain plants, these standards may result in significant cost impacts. Cost 

for the disposal of CCRs presently being used for non-encapsulated uses should also be 

added to these estimates. This would be a conservative measure, despite EPA’s assumption 

that overall beneficial use of CCRs may go up with this regulation. Without complete costs, it 

is impossible to determine the impact of the three proposal options for this regulation. Also, 

for the option under Subtitle C, do the requirements include disposing of the collected 

leachate or just monitoring? It would be helpful, if it were clarified. 

8. Preamble, Pages 220 and 221, Cost Estimation Uncertainties and Effective Dates 

One possible scenario that is not covered is the potential for site closures due to the 

increased cost of disposal. In some instances, large volumes are disposed of in sand and 
Interagency Working Comments on Draft Rule under EO 12866 

Page 24 of 46 

gravel pits and other methods that were termed “sham beneficial uses”. These plants would 

have to convert to proper disposal techniques, and there is the possibility that some sites 

may become unprofitable due to higher disposal costs. This potential reduction in generation 

capacity is one area that should be explored as a possible scenario. 

Shortfalls in landfill capacity may be experienced when certain disposal facilities affected by 

this regulation are closed, causing a need for new units to replace existing capacity as well as 

additional capacity to manage wastes no longer being used for certain current disposal 

practices (e.g., sand and gravel pits.) It is possible that the time period allowed to implement 

these changes is too short. 

9. Preamble, Page 269, APPENDIX to the Preamble: Documented Damages from CCR 

Management Practices 

The proposed regulation covers four types of CCRs: fly ash, bottom ash, boiler slag, and flue 

gas desulfurization wastes. All of these wastes have different characteristics and 

constituents. In the proven damage cases (described in EPA-HQ-RCRA-2006-0796-0015), 

most disposal facilities not only include a mixture of two or more of the CCR types, but, 

frequently, they have other types of wastes present, such as water treatment waste, 

petroleum coke, etc. It is not clear whether presence of wastes other than CCRs contributed 

to the proven damage status. It is also not clear whether one or more of the CCRs did not 

contribute to the damage. The EPA should address this in its discussion in the preamble. 

10. Risk Assessment Document, EPA Contract EP-W2-09-004 

The RA makes assumptions that could over-state the risks of disposal units. The MonteCarlo modeling tends to over-estimate risks by using a generic statistical model without 

consideration of mitigation measures available on a site specific basis. In particular, the RA 

allows for a time scale of 10,000 years for exposure. In all proven damage cases that have 

data available (22 of 24 damage cases presented in the 2007 NODA, excluding oil ash sites), 

remediation activities have been initiated to mitigate further damages. In addition, the RA is 

not based on a “site specific” analysis, but rather a “site based” analysis. Each individual site 

will have specific criteria, including hydrological factors, precipitation, soil permeability, 

topography, and other considerations. These factors could vastly influence the possibility of 

impacts to ground or surface water. No measure of population is taken into account, which 

makes interpretation of the risks difficult to ascertain. 

The data for the RA suggests that, of the three waste types modeled (CCRs, CCRs co 

disposed with coal refuse, and fluidized bed combustion (FBC) waste), multiple waste 

streams were sampled and collectively termed CCRs, including bottom ash, boiler slag, fly 

ash, and flue gas desulphurization (FGD) sludge. These 4 waste streams are considerably 

different, and it may not make sense to consider them all in a single category. Boiler Slag, for 

instance, is a glassy substance and largely inert, however it is assumed to have the same 

risks as FGD sludge by this analysis. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 25 of 46 

In a coal-fired boiler, metals present in flue gases are captured by particulate control devices 

and are thus collected along with fly ash. In the preamble, EPA has noted in several places 

that introduction of future emission control devices may increase the amount of metals in 

CCRs. One example of this could be the injection of activated carbon in boiler flue gases to 

capture mercury, since activated carbon may also capture other metals (along with mercury). 

However, in this case, these metals would ultimately end up in fly ash as well. Any 

differences this may cause in the toxicity potential between bottom and fly ash should be 

included in EPA’s analysis. 

Department of Interior 

The Bureau of Reclamation has reviewed the EPA’s Proposed Regulation for Coal 

Combustion Residues. We provide the following comments: 

General Comments: 

Reclamation has concerns about the impact this Proposed Regulation for Coal Combustion 

Residues may have on Reclamation projects. 

Specific comments: 

Agency Process: 

Options 1 and 3 of the proposed plan would result in the full or partial classification of coal 

combustion residues (CCR) as a Subtitle C hazardous waste under the Resource 

Conservation and Recovery Act (RCRA). 

Reclamation comment: 

Reclamation has been using fly ash in their concrete mixes since 1949 and supports fly ash 

as a beneficial additive to conventional concrete, high performance concrete, roller 

compacted concrete, controlled low strength backfill and soil cement. Currently we require 

20- to 70-percent of the cementitious material in concrete to be fly ash. Reclamation currently 

follows the 1983 EPA guidelines2 for the procurement of cement and concrete containing fly 

ash and is designing and building structures with a strategy towards sustainability per 

Executive Order 135143. 

Although it is stated that the 1980 RCRA Bevill exclusion for CCR beneficial use will be 

retained, it is our opinion that any classification of CCR’s as hazardous material would 

adversely impact Reclamation. We believe that the EPA is underestimating the severity of 

                                                           

2

 National Archives and Records Administration, Office of the Federal Register, “Code of Federal Regulations, Title 40, Protection of 

Environment”, Part 247, 48FR. 

3

 Federal Register, “Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance”, Vol. 74, No. 194, 

October 8, 2009. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 26 of 46 

the impact of listing CCR’s as hazardous waste for the 14 industries which beneficially use 

CCR’s. We also believe their assumption stated in the executive summary that “these 

industries are not expected to be impacted by the proposed rule” should be more fully 

evaluated. 

In our opinion, the EPA’s stated goals to “increase the beneficial use of CCR’s from 31% in 

2001 to 50% in 2011” and to “increase the use of coal fly ash in concrete from 14 million U.S. 

tons in 2002 to 18.6 million U.S. tons by 2011”4 will not be met if CCR’s are fully or partly 

regulated as RCRA subtitle C. By regulating CCR disposal as RCRA Subtitle C, in full or by 

implementing a hybrid regulation, we believe that the availability to purchase fly ash for use in 

concrete will be eliminated. 

We believe that the proposed regulations do not resolve the containment issues. If the 

wastes are classified as RCRA subtitle C, more CCR’s will be diverted to storage as waste 

and not used in beneficial ways. 

Conclusions 

 Fly ash is not hazardous when using good practices in concrete construction. 

o EPA has published a number of documents5,6,7 that recommended that coal 

combustion wastes (fly ash) not be regulated as a hazardous waste under 

RCRA subtitle C, and that such classification is unwarranted. 

o In June 2008, EPA reported to CongressError! Bookmark not defined. the energy 

savings and environmental benefits associated with substitution of recovered 

mineral materials (including coal fly ash) involving cement and concrete. 

 We concur with industry leaders8

 who feel strongly that if fly ash is designated a 

hazardous waste, fully or in a hybrid classification, it will no longer be used in 

concrete. 

o Fly ash producers will no longer allow its use due to liability concerns. 

o If it is classified as a hazardous waste, its use will be removed from local, state 

and national building codes for the same reason. 

o Even if it is specified, contractors will not want to use it for the same reason. 

o Ready mixed suppliers purchasing, storing, and using fly ash in their concrete 

would perceive an increase in liability and would be reluctant to supply concrete 

containing fly ash. 

o There may be a perception that the hazardous component of fly ash can be 

passed from the concrete into the water that comes in contact with our concrete 

facilities that contain fly ash. Reclamation supplies irrigation water for 

10,000,000 acres of land, it supplies 10 trillion gallons of water for municipal, 

                                                           

4

 United States Environmental Protection Agency in conjunction with the U.S. Department of Transportation and the U.S. Department of 

Energy, “Study on Increasing the Usage of Recovered Mineral Components in Federally Funded Projects Involving Procurement of Cement 

and Concrete to Address the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Report to Congress”, 

EPA530-R-08-007, June 3, 2008. 

5

 U.S. Environmental Protection Agency. August 9, 1993. Notice of Regulatory Determination on Four Large-Volume Wastes from the 

Combustion of Coal by Electric Utility Power Plants, Federal Register Notice. 58 FR 42466. 6

 US EPA, Reg. Determination on Wastes from the Combustion of Fossil Fuels, Final Rule 65 Fed. Reg. 32214, May 22, 2000. 7

 U.S. Environmental Protection Agency (U.S. EPA), January 2006. “Characterization of Mercury-Enriched Coal Combustion Residues from 

Electric Utilities Using Enhanced Sorbents for Mercury Control.” EPA/600/R-06/008. F. Sanchez, R. Keeney, D. Kosson, R. Delapp, and 

S.Thorneloe. 

8

 http://www.uswag.org/ccbletters.htm 
Interagency Working Comments on Draft Rule under EO 12866 

Page 27 of 46 

residential, and industrial use and it supplies 31 million people with water for 

municipal, residential, and industrial use. 

 The cost of concrete would increase if fly ash is considered as a hazardous 

material. 

o If still marketed, the cost of fly ash will increase if fly ash is labeled a hazardous 

material. The cost of transporting, handling, storing, and using fly ash to 

produce concrete will increase to account for increased liability. 

o Fly ash costs approximately 20- to 50-percent less than the cost of cement 

depending on availability. If the availability of fly ash is reduced to the point that 

only cement will be used in producing concrete then all projects will lose the 

cost savings associated with using fly ash. 

o Without the use of fly ash, the demand for cement will increase significantly, 

which will increase the price for cement. 

o If the availability of fly ash is reduced to the point that the demand for fly ash is 

greater than the supply, the market will see an increase in the cost of fly ash. 

 Use of fly ash in concrete is reducing CO2 emissions by about 15 million tons 

annually9

. 

o Use of fly ash also preserves natural resources since less mining is needed to 

obtain materials to manufacture cement, and less land is used to dispose of fly 

ash. 

o Without the use of fly ash, the demand for cement will increase significantly, 

and more CO2 will be generated due to the increased production of cement. 

 Replacing fly ash with other materials will be at a greater cost to obtain 

equivalent performance and durability. 

o Fly ash has been proven to effectively mitigate the effects of Alkali-SilicaReaction (ASR) in concrete, which has the potential to affect many Reclamation 

concrete structures. The other methods of mitigation are to use lithium nitrate 

admixtures or higher quality aggregates. 

 There are very limited sources of lithium, the cost is high, and procuring 

large amounts would be difficult as the battery industry heavily relies on 

lithium for production. 

 The availability of good-quality, accessible non-reactive aggregate has 

decreased over the years. This means new mining areas and greater 

hauling distances, which in turn increases emissions and cost. 

o Fly ash is an essential component to prevent sulfate attack in concrete. Fly ash 

extends the service life of concrete exposed to sulfate attack from less than 50 

years to more than 100 years. Groundwater sulfates are common throughout 

the western United States and cause significant deterioration in unprotected 

concrete. 

o Without access to fly ash, Reclamation would need to use different methods to 

obtain equivalent performance in concrete structures. Chemical admixtures are 

available for use in concrete, but to obtain the same benefits provided by fly 

ash, multiple chemicals would need to be combined at a much greater cost. 

o Natural pozzolans (natural fly ashes) would not be a viable replacement for fly 

ash as their quality is highly variable and most of them require extensive 

processing and additional energy consumption to make them suitable for 

concrete. 

                                                           

9 http://www.coalashfacts.org/CCP%20Fact%20Sheet%201%20-%20Safe%20and%20Valuable%20Resources_FINAL.pdf
Interagency Working Comments on Draft Rule under EO 12866 

Page 28 of 46 

 Fly ash improves concrete workability. 

o Fly ash particles are finer than cement and are spherical in shape, which 

increases the workability of concrete reducing labor cost. 

 The use of fly ash in mass concrete saves substantial cooling costs and 

improves quality by minimizing thermal cracking. 

o Using fly ash in concrete reduces thermal cracking due to heat generation from 

hydrating cement. Reducing the amount of cement required in the mixture 

lowers or eliminates costs associated with artificial cooling. Artificial cooling 

costs required to reduce the thermal stresses in mass concrete are significant. 

 If fly ash is considered hazardous waste, it could impact any work performed on 

existing concrete structures. 

o Sampling and testing of existing concrete containing fly ash would create solid 

waste that could be regulated by the EPA and could require special hazardous 

waste disposal. 

o Cost for contractor’s liability for workers handling and testing the material could 

significantly increase. 

 Reclamation is currently following the 1983 EPA guidelines for procurement of 

cement and concrete containing fly ash2. 

o Guidelines issued under executive order 40 CFR Part 247, essentially required 

all federal agencies to (1) identify established specifications for coal fly ash in 

cement and concrete; (2) revise specifications to allow the use of concrete 

containing coal fly ash; and (3) revise performance standards related to cement 

and concrete to ensure that coal fly ash is not arbitrarily restricted. In addition, 

federal procurement regulations also required federal agencies to provide 

documentation as to why fly ash can not be used in concrete. 

Department of Transportation 

 It would be helpful if EPA incorporated some explanatory language in the preamble that 

CCRs (destined for disposal) listed as hazardous wastes under Subtitle C of RCRA will 

also be subject to the DOT hazardous materials regulations (HMR) because a material 

subject to EPA hazardous waste manifest requirements is defined as a hazardous 

material under the HMR. In the interest of making generators and transporters of this 

waste aware that the DOT regulations will apply when CCRs are transported in 

commerce, the Pipeline and Hazardous Materials Safety Administration suggests that 

EPA incorporate the following: 

"Generators and transporters of CCRs destined for disposal should be aware that an EPA 

hazardous waste subject to EPA hazardous waste manifest requirements under 40 CFR 

Part 262 meets the definition for a hazardous material under the Department of 

Transportation's Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) and 

must be offered and transported in accordance with all applicable HMR requirements, 

including materials classification, packaging, and hazard communication. See the 

definition for "hazardous waste" in 49 CFR 171.8." 

 DOT is concerned about the negative impacts that may result from designating fly ash as 

a hazardous material. Fly ash is a valuable byproduct used in highway facility 
Interagency Working Comments on Draft Rule under EO 12866 

Page 29 of 46 

construction. It is a vital component of concrete and is important for a number of other 

infrastructure uses. To designate fly ash, along with other CCRs, as hazardous wastes 

would likely jeopardize its availability and discourage, if not eliminate, its use. 

 The Rule would designate all CCRs as hazardous and then exempts beneficial uses. 

However, DOT is concerned that this approach is confusing, and may still have 

unintended consequences due to the association with Subtitle C. For example, many 

States have policies that forbid the use of any hazardous materials. Thus, if fly ash is 

designated as a hazardous material, it would fall under these general State prohibitions 

and would legally prevent the use of fly ash in public works structures and highways. 

Furthermore, an exemption in a Federal regulation probably would not negate State laws. 

If a material is in any manner considered hazardous, States will not risk future liability. 

DOT supports EPA’s efforts to protect the beneficial uses of CCRs, but we are still 

concerned that this Rule would significantly diminish the beneficial uses of CCRs. 

 FHWA suggests that the proposed rule would continue to be effective and protect the 

beneficial uses of CCRs if the rule focused upon disposal regulations. If the rule focused 

upon disposal regulations, then there would be no adverse effect on fly ash usage, and 

both an environmental protection interest and the public works benefit would be 

preserved. 

 It should be noted that the incident at a TVA facility which drew attention to this topic 

involved bottom ash, a product that is handled and stored using a wet process. Fly ash 

used in concrete is handled using a dry process and has no relationship to the Kingston, 

Tennessee situation. To designate the material as a hazardous material would likely 

result in more material requiring disposal, increasing the risk of future unfortunate events 

that could arise from the disposal effort instead of the current, beneficial utilization. 

 Fly ash can be used to improve concrete in many ways. The following is a brief list of 

those concrete properties improved through the utilization of fly ash: 

o Setting time is normally delayed. This aids in placement during summer 

construction. 

o Long term strength is increased. Early strength may be reduced but ultimate 

strength is increased, with strength gain being maintained for many years. 

o Heat of hydration of the concrete is normally reduced. This reduces shrinkage and 

thereby the cracking potential of the pavement or structure. 

o Fly ash, particularly Class F fly ash, will mitigate the potential for alkali silica 

reaction (ASR) in most concrete mixtures. ASR is a major source of early concrete 

deterioration in many areas of the US. It is such a significant problem that 

Congress has allocated $8 million to conduct research to seek solutions. At this 

time, fly ash is the most widely used product to combat this problem and to date 

very few other solutions have been found to address the issue in a practical 

manner. 

o Fly ash reduces the permeability of concrete. Lower permeability resists the 

intrusion of deleterious chemicals and prolongs the life of the structure or 

pavement. 

 If fly ash is designated a hazardous material, FHWA is concerned that its usage in 

concrete will greatly diminish. State and local agencies that are responsible for highway 

systems, as well as commercial users of concrete, would not utilize such a material from 

either a public safety standpoint or because of State statutes. A diminished use of fly ash 

in concrete will have the following implications: 
Interagency Working Comments on Draft Rule under EO 12866 

Page 30 of 46 

o More cement would be used. Today, commonly 20% to 35% of the cementitious 

material in many, if not most, concrete mixtures is fly ash. Fly ash unavailability 

would mean the same percent of cement would be added back into the mixtures 

and thus increase the carbon footprint by that same amount. 

o Cement is more costly than fly ash. In some areas, it is as much as twice the cost. 

Agency budgets have already been decimated by the increase in fuel and asphalt 

costs of recent years, and this would be another challenge to maintaining our 

highway system. 

o Agencies would no longer have practical, economical means to address ASR. In 

some states this affects millions of dollars directed toward bridges and pavements. 

As renewed emphasis is being placed on our nation’s infrastructure, removing a 

valuable tool such as fly ash would be devastating to the long term effectiveness of 

that effort. 

o Concrete durability would be reduced. This would shorten the life of pavements 

and structures, further straining our aging transportation system. 

o The potential for cracking in concrete would increase. In both pavements and 

structures, cracking reduces the service life and increases maintenance costs. 

Specific Questions/Comments: 

On page 2 of the preamble, the following statement is made: 

“ In addition, CCRs destined for disposal would be subject to the cradle-to grave 

management standards under the rules implementing subtitle C of RCRA. “ 

Comment: Fly ash is produced at a power plant and thus must be stored until it is transported 

off-site. How and when would the exemption be applied? Does the exemption begin at the 

power plant, with an exempt storage area and anon-exempt storage area? For example, if 

two trucks contain the same fly ash, and one is bound for disposal and one is bound for a 

cement plant for beneficial use, would one be considered transporting hazardous material 

and the other not? 

On page 69 of the preamble, the following statement is made: “As described previously, EPA 

has identified 27 proven damage cases - 17 cases of damage to groundwater, and ten cases 

of damage to surface water, including ecological damages in seven of the ten cases.” 

Comment: All cases cited involve either ground water or surface water. Throughout the 

proposed rule, the justification for the hazardous waste designation is water pollution relating 

to improper disposal. There is no documented evidence that fly ash used for beneficial uses 

has created any adverse effect since the May 2000 Regulation or Determination that 

concluded Subtitle C was not warranted. 

Infrastructure utilizes dry fly ash. FHWA suggests that EPA address certain types of CCRs 

that are stored in wet or dry form. This would free those materials most used for beneficial 

use from Subtitle C and also avoid adverse effects on beneficial uses of CCRs. 

On page 255 of the preamble, the following statement is made: 
Interagency Working Comments on Draft Rule under EO 12866 

Page 31 of 46 

“Of the 495, 383 plants (77%) operate CCR disposal units on-site (i.e., onsite landfills or 

onsite surface impoundments), 84 plants solely transport CCRs to offsite disposal units 

operated by other companies (e.g., commercial waste management companies), and 28 

other plants generate CCRs that are solely beneficially used rather than disposed.” 

Comment: FHWA is concerned that the 28 plants that solely provide CCRs for beneficial use 

would be unnecessarily burdened with new containment standards, reporting requirements 

and transport restrictions for a product that is not hazardous. 

References cited in DOT’s comments

U.S. Environmental Protection Agency. April 2005. Using Coal Ash in Highway Construction: 

A Guide to Benefits and Impacts, EPA-530-K-05-002. 

Federal Highway Administration. August 1995. Fly Ash Facts for Highway Engineers, FHWASA-94-081. 

Rens, L. September 2009. Concrete Roads: A Smart and Sustainable Choice. Brussels, 

Belgium: European Concrete Paving Association. www.eupave.eu. 

Helmuth, Richard. 1987. Fly Ash in Cement and Concrete. Skokie, IL: Portland Cement 

Association 

Tennessee Valley Authority (TVA): 

I. Introduction 

TVA appreciates the opportunity to participate in the Office of Management and Budget’s 

interagency review of EPA’s proposed Coal Combustion Residuals rules. We support EPA’s 

initiative in developing national standards which will provide a uniform regulatory 

platform for all utilities. As an operating utility and as a Federal agency that will ultimately 

be required to comply with rules once finalized, we believe we can offer a unique perspective 

on the operational impact of these rules. As we have previously announced it is our intention 

to “go dry” in the handling and disposal of CCRs at all of our facilities over the next ten (10) 

years. 

However we do have concerns with the preferred approach, RCRA Subtitle C and the 

classification of CCRs as a listed hazardous waste, which EPA is proposing in this rule. 

Among other things, today’s comments will be directed at the impacts a Subtitle C approach 

could have on our, and other utilities’, daily operations, and our concern on any negative 

impact a hazardous waste classification could have on our ability to maximize legitimate use 

of CCR products. Our comments are generally directed at what we consider significant 

impacts the proposed rules dictate. More specific technical and operational comments will be 

submitted directly to EPA in the course of the public comment period once the rules are 

published in the Federal Register. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 32 of 46 

II. EPA Approaches for Regulating CCRs-Analysis of Proposed Options 

The preamble discusses three possible approaches to regulating CCRs. The first is Subtitle 

C, the second Subtitle D and lastly, a combination of Subtitle C & D requirements. 

A. Subtitle C Option 

1. Description 

This is the EPAs preferred option. As stated on page 226 of the preamble, 

Facilities treating, storing, or disposing of the newly listed CCRs are subject to the RCRA 

3010 notification requirements, the permit requirements in 40 CFR part 270, and regulations 

in 40 CFR part 264 or 267 for permitted facilities or part 265 for interim status facilities, 

including the general facility requirements in subpart B, the preparedness and prevention 

requirements in subpart C, the contingency plan and emergency procedure requirement in 

subpart D, the manifest, recordkeeping and reporting in subpart E, the closure and postclosure requirements in subpart G, the corrective action requirements, including facility-wide 

corrective action in subpart F, and the financial assurance requirements in subpart H. 

2. Issues, considerations and Concerns 

a. Listed Waste Management Issues 

Listing CCRs as K179 hazardous waste under 40 CFR 261 brings up a host of issues 

It is common practice in the utility industry to employ wet systems to collect and transport 

CCRs to disposal or reclaim units. As a listed waste both the CCRs and the water typically 

used to transport them would remain a hazardous waste regardless of subsequent treatment. 

As stated on page 136 of the preamble: 

EPA expects that as a result of these measures, facilities will switch to dry handling of CCRs, 

which will obviate the need for the construction of new surface impoundments after the 

effective date of the rule, and will effectively phase out existing surface impoundments within 

the five years before these requirements become effective. 

The ramifications of this requirement are immense. Wet scrubbing technology for flue gas 

desulfurization (FGD) provides a key technology for compliance with existing and future clean 

air act requirements. These systems can produce nearly pure gypsum in a wastewater 

stream. These systems can use impoundments where the gypsum can be subsequently 

reclaimed and beneficially used in the production of wallboard (discussed further below). 

Even with de-watering systems, the wastewater, under the proposed rule, would retain the 

hazardous listing, complicating its treatment and discharge as discussed below. TVA 

operates eight wet scrubbers and plans additional deployment of this technology. EPA 

programs to attain the National Ambient Air Quality Standards for fine particles, for visibility 

improvements in parks, and to reduce emissions of hazardous air pollutants account for the 

deployment of wet scrubbing technology across the nations. Program goals might be 

impacted if this technology is overly burdened or needlessly eliminated. Dry scrubbing 

systems exist, but they have limitations for use with higher sulfur coals. If these rules force 
Interagency Working Comments on Draft Rule under EO 12866 

Page 33 of 46 

dry scrubbing technology, this will also result in fuel switching. Analysis of the fuel switching 

is not explored to any great depth in the regulatory impact analysis. 

Wastewaters are also generated in transporting other CCRs to impoundments. One means of 

producing dry CCRs is by dewatering. The resulting water can then be sent to a surface 

water impoundment and discharged per the facilities NPDES permit. The Subtitle C 

approach would eliminate this treatment option because the filtrate for the dewatering 

operation would remain a hazardous waste. On page 146 of the preamble EPA clearly states 

the impact of their preferred Subtitle C approach: “The practical effect of today’s proposed 

rule would be to prevent facilities from continuing to manage wet forms of CCRs, and would 

result in facilities operating surface impoundments to stop receiving CCRs no later than five 

years after the effective date of the final regulation....” The net effect is to require all power 

plants to install dry systems and eliminate water transport of CCRs. This will not only have a 

large financial impact it, but will also lead to the possibility of additional fugitive air emissions 

in dry conveying of these materials.

b. Unit Design Considerations 

On page 142 of the preamble EPA states: 

Based on its risk analyses and the damage cases, EPA has concluded that a single 

composite liner system for CCR landfills and surface impoundments will protect human health 

and the environment from releases of contaminants to groundwater. 

We agree with this conclusion. Once the solid CCRs are dewatered and removed from the 

slurry carrying them from the collection process TVA does not believe there is any practical, 

technical or safety reason that a properly constructed wastewater impoundment should not 

be allowed to accept the filtrate, landfill leachate and other nonhazardous waste water 

streams such as precipitation runoff from the coal storage piles at the facility, waste coal or 

coal mill rejects that are not of sufficient quality to burn as fuel, and wastes from cleaning 

boilers used to generate steam. Waste water impoundments are used by many industries as 

a safe and effective means of complying with NPDES permit requirements. 

EPA’s assumption (pg 155) that disposal patterns will remain the same may be erroneous. 

Most utilities that have impoundments, including TVA, will more than likely be forced to look 

for new offsite disposal units. Often there is limited onsite land available for simultaneously 

constructing new onsite dry landfills while closing existing impoundments. 

c. Point of Generation Concerns 

What does EPA consider the Point of Generation to be? The answers can affect both 

compliance and the ability to beneficially use CCRs. On page 85 of the preamble it is stated: 

“Today’s proposed action would leave in place EPA’s May 2000 Regulatory Determination 

that beneficially used CCRs do not warrant federal regulation under subtitle C or D of RCRA”. 

Since CCRs destined for beneficial use are not regulated, it is not obvious at what point 

CCRs become regulated (K179). If it is at the point where the decision is made to dispose or 

beneficially use the material, then any fugitive or de minimus losses prior to that point that 

are cleaned up and then beneficially used should be excluded from being classified K179. In 
Interagency Working Comments on Draft Rule under EO 12866 

Page 34 of 46 

addition, auxiliary collection, storage, and processing operations may be subject to onerous 

permitting and administrative requirements with no associated reductions in the risks of 

operating these systems. For CCRs placed in a landfill and later recovered it is not clear 

whether the beneficial use exemption is applicable. TVA routinely reclaims gypsum from 

disposal units at its facilities and depending on the point of generation this environmentally 

friendly practice could be needlessly eliminated. 

d. Facility-wide Corrective Action Issues 

Regulating CCR as hazardous waste would subject power plants to facility-wide corrective 

action. As stated in 40 CFR 264.101(a): “The owner or operator of a facility seeking a permit 

for the treatment, storage or disposal of hazardous waste must institute corrective action as 

necessary to protect human health and the environment for all releases of hazardous waste 

or constituents from any solid waste management unit (SWMU) at the facility, regardless of 

the time at which waste was placed in such unit.” According to EPA, a SWMU is “any 

discernable unit at which solid wastes have been placed at any time, irrespective of whether 

the unit was intended for the management of solid or hazardous waste. Such units include 

any area at a facility at which solid wastes have been routinely and systematically released.” 

[55 FR 30808] 

Over the years, EPA has determined in reviews required by the Bevill Amendment that CCRs 

have been used in a number of ways that are beneficial. This proposed rule takes exception 

to some of those past uses. While TVA supports EPA in its efforts to better define beneficial 

use, to now subject decades of legitimate industry management practices to facility-wide 

corrective action requirements is inappropriate. Corrective action can be more appropriately 

triggered through groundwater monitoring as required by this rule. 

e. Permitting Issues and Resource Limitations 

TVA has previously announced its intention of “going dry” in the handling and disposal of 

CCRs. In order to accomplish this goal the agency plans to close 18 surface impoundments, 

install 4 gypsum dewatering facilities, convert 6 fly and 11 bottom ash/boiler slag systems to 

dry, close 10 landfills and construct 10 new landfills. We are in the process of preparing 

closure plans and locating and permitting new landfills at this time. As explained below, we 

are concerned that the subtitle C option could delay the implementation of these projects. 

f. Unit Classification and Timing Concerns 

On page 303 of the proposed rule an existing landfill is defined as: 

Existing CCR Landfill means a landfill which was in operation or for which construction 

commenced prior to promulgation of the federal management standards which are applicable 

to such landfill. A CCR landfill has commenced construction if: 

The owner or operator has obtained the Federal, State and local approvals or permits 

necessary to begin physical construction; and either 

(i) A continuous on-site, physical construction program has begun; or 
Interagency Working Comments on Draft Rule under EO 12866 

Page 35 of 46 

(ii) The owner or operator has entered into contractual obligations—which cannot be 

cancelled or modified without substantial loss—for physical construction of the CCR landfill to 

be completed within a reasonable time. 

On page 304 of the preamble a new landfill is defined as: 

New CCR landfill means a landfill, including lateral expansions, or installation from which 

there is or may be placement of CCRs without the presence of free liquids, which began 

operation, or for which the construction commenced after the date on which the federal 

management standards which are applicable to such landfill become effective in the state 

where the landfill is located. 

Our interpretation of these definitions is that an existing landfill would be one in existence on 

the date the federal rule is promulgated. We have been told that EPA plans on publishing 

this proposed rule in December 2009 with a 90 day comment period. For discussion, that 

would mean the comment period would end in March 2010 and the rule could be 

promulgated sometime later that year. All landfills in existence at that time would meet the 

definition of an “Existing CCR Landfill”. Authorized states would have one to two years to 

adopt the federal rule after which permits could be issued for “New CCR Landfills”. In the 

one to two year interim between the time the federal rule was promulgated and the time new 

standards become effective in the state, it appears no permits could be issued. Also, once 

the state program is in place, these new permits would be issued as Subtitle C permits 

instead of Subtitle D which can easily take years to obtain. We are concerned that the sheer 

volume as well as the more complex Subtitle C permit application process could overwhelm 

the state and federal permitting staffs. TVA has an aggressive schedule to close its 

impoundments and construct new landfills, and this rule could delay those projects as well as 

cause operational problems at plants needing additional disposal or storage capacity. The 

only alternative would be to use existing offsite Subtitle C disposal facilities at a significant 

cost increase in tipping fees and transportation costs. Also, the CCR destined for waste 

disposal would use a significant volume of finite existing subtitle C landfill space that was 

designed and constructed to more stringent standards (double liner and leak detection 

system) and for wastes that pose a much greater risk to the environment than are being 

proposed in this rule for CCRs. This increased demand for space will result in a lower supply 

and a corresponding increase in disposal costs for CCRs and hazardous wastes generally on 

a national scale. 

3. Summary- Subtitle C approach will: 

 Subject facilities to the complex administrative requirements of Subtitle C permitting and 

operating requirements with little environmental benefit 

 Effectively eliminate wet emissions control, a viable and common pollution control 

technology 

 Adversely affect the ability to market CCRs for beneficial reuse 

 Delay the permitting of new lined, disposal facilities 

 Place large financial and permit processing burdens on the states 

 Subject utility operations to facility-wide investigations and corrective actions for past 

legitimate used of CCRs 
Interagency Working Comments on Draft Rule under EO 12866 

Page 36 of 46 

 The listing of CCRs as K179 will present almost insurmountable compliance issues. 

Fugitive and de minimus losses from power generation and process equipment are not 

uncommon. While TVA strives to minimize such losses they are inevitable. The listing of 

CCR would make these losses subject to enforcement as improper management and 

handling of a hazardous waste. Compliance would be nearly impossible. 

 Depending on where the point of generation occurs, RCRA training requirements could 

affect a substantial number of employees. If the POG is at point of loading, then only 10-

20 personnel per site would be impacted, but if the POG is at the boiler, then the entire 

plant would be impacted (~100-500 per site). The associated time and training costs are 

substantial. 

 Potentially subjecting site transportation destined for disposal to manifesting and RCRA 

transporter requirements is expensive, unwarranted and extremely burdensome for inert 

materials such as ash and gypsum 

 Increase transportation costs and potential for incidents due to the greater hauling 

distances to subtitle C permitted facilities 

B. Subtitle D Option 

1. Description 

This approach is explained in detail on pages 156-170 of the preamble. This approach 

contains most of the requirements of the Subtitle C approach including, location restrictions 

and requirements for unit design, ground water monitoring, run-on and run-off controls, and 

closure and post-closure care, as well as criteria restricting the wet handling of CCRs in 

certain surface impoundments. This approach allows the same level of environmental 

protection without the administrative burdens, exorbitant cost increases, and depletion of 

valuable subtitle C landfill capacity and state permitting resources associated with the subtitle 

C approach. 

The design requirements for landfills are identical to the proposed subtitle C approach. 

Existing surface impoundments without composite liners would be phased out and new 

impoundments would likely be required to have composite liners and leachate collection. 

 2. Considerations 

In its discussion of a subtitle D program some of EPA’s more pertinent comments include: 

 Many states already have some if not most of these requirements (with the exception of 

the phase-out of wet handling), under their current subtitle D programs, and they generally 

implement the requirements through permits. (page 157) 

 EPA and certain commenters, however, have identified significant gaps in state programs 

and current practices. The subtitle D approach would fill gaps and ensure national 

minimum standards. (page 157)

 Under a subtitle D regulation, regulated CCR wastes shipped off-site for disposal would 

have to be sent to facilities that met the standards above, or they would have to be sent 
Interagency Working Comments on Draft Rule under EO 12866 

Page 37 of 46 

and disposed of in units permitted by the states under subtitle D of RCRA that met the 40 

CFR Part 258 standards. (page 166)

 At the same time, EPA recognizes that many of the states have regulatory programs in 

place for the disposal of CCRs, and that industry practices have been improving. 

(page167)

 The subtitle D approach would complement existing state programs and practices by 

filling in gaps, and ensuring that all disposal of regulated CCRs meets national minimum 

standards that are designed to address key risks identified in damage cases and the risk 

assessment – including the risk of surface impoundment failure, which has been identified 

as a concern appropriate for control under waste regulations. (pages 167-168)

 In addition, the subtitle D approach would eliminate two concerns that industry and state 

commenters have expressed to date: (1) that a subtitle C approach would inappropriately 

stigmatize uses of CCRs that provide significant environmental or economic benefits, or 

that (according to those commenters) hold significant potential promise, and (2) that the 

volume of CCR wastes generated – particularly requirements of a subtitle C regulation led 

to more off-site disposal – would overwhelm existing subtitle C capacity. (page 168)

 Related to the capacity issue, these same commenters have also argued that, under 

subtitle C, future cleanup of poorly sited or leaking disposal sites (including historical or 

legacy sites) would be considerably more expensive, especially where off-site disposal 

was chosen as the option. (page 168)

 EPA also notes that many of the requirements discussed above would go into effect more 

quickly. Under subtitle D of RCRA, EPA would set a specific nationwide compliance date 

– typically 6 months after promulgation–and industry would be subject to the requirements 

on that date. (page 168) 

 States have expressed concern that subtitle C requirements will be considerably more 

expensive to implement than a subtitle D regulation. (page 169)

 3. Summary 

TVA considers most of these observations as positives and supports a subtitle D program 

which would alleviate many of our concerns stated above with EPA’s preferred subtitle C rule. 

In the preamble, EPA expresses its concern that if rules were promulgated under subtitle D of 

RCRA it would a lack an enforcement and permitting program as the statute establishes 

subtitle D as a state run only program. Since this appears to be the only major obstacle in 

regulating CCRs as a nonhazardous solid waste we respectfully suggest EPA pursue a 

legislative solution to this issue rather than impose a subtitle C hazardous program with so 

many negatives attached to it, on all of the utility industry. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 38 of 46 

C. Subtitle C & D Option 

While we feel a full subtitle D approach best addresses the handling and disposal of CCRs, 

this approach is far better than a full subtitle C approach. Dry handled CCRs regulated under 

subtitle D, and the Bevill exemption being maintained for CCRs beneficially used are 

positives. Regulating wet-handled CCRs as a subtitle C waste would still be a concern if it 

subjected the entire facility to hazardous waste permitting requirements and effectively 

eliminated dewatering systems. 

III. Beneficial Use - Considerations and Concerns 

A. Considerations 

As stated by EPA in the preamble on page 71: 

A subtitle D rule, as well as provisions that encourage facilities to switch from wet- to dryhandling, would not be expected to adversely affect beneficial uses of CCRs and, in fact, 

would likely increase the beneficial use as CCRs managed dry are more amenable to 

beneficial uses. In comparison, the states and the electric utility industry, as well as 

industries that beneficially use these materials, have argued that a subtitle C rule would 

adversely affect beneficial uses, possibly to the point that minimal amounts of CCPs would be 

beneficially used. If true, this could substantially increase the amount of CCRs that are 

disposed of. In addition, the states have argued that there may be indirect effects on the 

beneficial use of CCPs, including the possible adverse effects on state beneficial use 

programs; however, the nature and magnitude of these impacts is uncertain at the present 

time. On the other hand, environmental stakeholders have taken an opposite position – that 

is, the level of beneficial use might be related to the stringency of regulation, such that a 

subtitle C rule would actually increase the beneficial use of CCPs. 

As stated above we feel the first sentence reinforces that the best approach to regulating 

CCRs is subtitle D. In 2007, almost 50 million tons of CCRs were beneficially used ( page 

71) and each year the use of fly ash in concrete reduces greenhouse gas emissions by 12.5 

to 25 million tons of CO2 equivalent (page 90). The possibility of Subtitle C actually 

increasing the beneficial use of CCRs is purely speculative at best and the designation as a 

hazardous waste could literally cause millions of tons of CCRs to be disposed of instead of 

beneficially used. 

 B. Concerns 

1. Stigma of “Hazardous Waste” Classification & Toxics 

On page 72 EPA states: 

EPA believes that it can effectively mitigate concerns over any potential chilling effect on 

beneficial reuses resulting from association with classifying CCRs as hazardous wastes. 

This opinion needs to be substantiated because based on TVA’s experience, it is not 

accurate. The assumption that a stigma will be attached to CCP due to the regulation of 

CCR under Options 1 and 3 is correct. TVA learned during contacts with local residents after 
Interagency Working Comments on Draft Rule under EO 12866 

Page 39 of 46 

the Kingston incident that people were concerned that CCP materials could be used in the 

construction of schools and other buildings where children could come into contact with 

“hazardous” or “toxic” materials. 

Pages 87-88

EPA is not convinced nor believes that the commenters predictions will occur - that is, that a 

hazardous waste listing of CCRs will in practice eliminate all or virtually all beneficial uses of 

the material – as a result of a stigma effect or through the action of state laws that prohibit 

hazardous wastes from their beneficial use programs. At the time of the May 2000 

Regulatory Determination, EPA strongly expressed this concern. On reconsidering this 

issue, EPA is now of the view that the stigma concern will not result in the total collapse of 

the recycling of these materials. Rather, we believe that regulating the disposal of CCRs as 

hazardous waste, but allowing CCRs that are properly characterized and beneficially used to 

retain the Bevill exemption, would encourage facilities to increase the amounts of material 

beneficially reused, because it would decrease the costs associated with waste disposal, and 

would consequently likely increase overall the beneficial use of these materials. Thus, while 

EPA appreciates the concerns of the commenters on this issue, which include states, 

companies making (or hoping to make) products out of CCRs, and CCR users, we are 

unconvinced that stigma alone will drive people away from the use of valuable products. 

After all, industry currently produces products out of materials that, when discarded, would be 

hazardous waste, and consumers buy products which contain ingredients that would require 

management as a hazardous waste when disposed (e.g., solvents). 

We do not feel a decision with such potential for adverse environmental and financial affects 

should be based on an opinion. Utilities have been marketing CCRs for decades in growing 

numbers. Quite frankly, the use of solvents as an example is not appropriate. We believe 

most people recognize the inherent properties of a solvent are the same before and after use 

and are probably stored in a garage or out building. This is much different than someone 

knowing that the wallboard in their home would have been sent to hazardous waste landfill if 

not beneficially used. 

a. Supply & Demand 

Although some plants may attempt to minimize the costs of RCRA-type CCR disposal by 

investments in beneficial use programs or technologies, the economic analysis does not take 

into account that the resulting net costs to the utilities consists of a combination of the 

following: 

1. Current revenue streams generated by the sale of CCP will evaporate. CCP marketers 

know utilities’ disposal costs and will demand subsidies to maintain or increase beneficial 

reuse. These subsidies could cost utilities up to the amount of their higher disposal costs, 

and the resulting market environment will most likely require additional subsidies beyond 

the utilities’ actual management costs in order to overcome market resistance to the use 

of materials that the market and the public perceive as hazardous; 

2. The increased costs of transporting CCP due to the change in the material’s designation 

from nonhazardous to hazardous upon the occurrence of an accident or spill; and 
Interagency Working Comments on Draft Rule under EO 12866 

Page 40 of 46 

3. Because of technical considerations, the market will bear only a finite quantity of CCP as 

a replacement for naturally occurring materials regardless of the financial incentives to the 

utilities and the end users, and, with the probable market setbacks resulting from the 

RCRA stigma, the continued growth of CCP beneficial reuse will not continue at historical 

rates. 

b. Other Cost Issues 

The assumption that particular plants will continue to beneficially reuse CCP at the current 

rates does not take into account: 

1. The actual cost of disposing of CCR under new regulations may vary widely between 

plants; 

2. Regional utilities will perform economic analyses to identify the highest cost plants for the 

promotion of beneficial reuse; and 

3. This economic analysis may cause the increase of beneficial reuse at one location at the 

expense of another existing program. 

An example within the TVA system is a Plant that currently produces dry fly ash that is 

marketable as a cement replacement due to its high quality. If TVA converts all of its Plants 

to dry collection and installs a fly ash beneficiation system at a plant that previously did not 

market fly ash, the economics will dictate that the beneficiated fly ash should be sold to the 

detriment of the existing market for TVA’s other ash. In addition, the market territories will 

shift toward the Plant with the beneficiated ash, thereby increasing transportation costs for 

beneficial reuse of other ash. 

Public and market perception that CCRs, and thus CCPs, are hazardous will drive end users 

to return to the raw materials that are now being replaced by low cost CCPs, thereby 

increasing demand for the original materials and further driving up their cost. Small 

businesses such as cinder block manufacturers, concrete contractors, and abrasives blasters 

will be affected disproportionately when 20% to 100% of their raw materials become more 

costly. 

IV. On-going State of Federally Required Cleanups 

On page 107 of the preamble it is stated: 

The Agency is proposing to allow state or federally-required cleanups commenced prior to 

the effective date of the final rule to be completed in accordance with the requirements 

determined to be appropriate for the specific cleanup.
Interagency Working Comments on Draft Rule under EO 12866 

Page 41 of 46 

We strongly support this as it will allow current on-going cleanups to achieve their goals in a 

timely manner. 

V. CCR Risk Assessment 

During the EPA OMB briefing teleconference on October 28, 2009, EPA indicated that when 

modeling groundwater to drinking water impacts that they substituted drinking water well 

proximity date near municipal solid waste landfills (MSWLF) for wells potentially near utility 

landfills and impoundments. We question the validity of the substitution as power plants are 

typically located near large water bodies such as rivers. Generally groundwater in the 

uppermost aquifer would be expected to move toward surface water and any site specific 

contamination would rapidly become attenuated. MSWLFs on the other hand can be located 

anywhere and any groundwater impacts can have a much greater impact on any drinking 

water wells in their proximity. 

VI. Regulatory Impact Analysis 

On page 71 of the RIA, Exhibit 41 presents costs for cleanup of the Kingston, TN dike failure. 

Both cleanup as a nonhazardous waste and cleanup as a hazardous waste are presented 

and are attributed to TVA data. The assumptions for the cleanup as a hazardous waste quote 

a tipping fee cost at a Subtitle C landfill as $80/ton. The original cost was based on sending a 

nonhazardous waste to a hazardous waste landfill. Sending the same material to the same 

Subtitle C landfill classified as a listed hazardous waste, as EPA is proposing for CCRs, could 

easily cost two to three times as much. 

United States Department of Agriculture (USDA) 

Agricultural Research Service 

- Listing of all CCRs as hazardous waste significantly inhibit recognized, current, and 

continuing beneficial uses. What farmer would want to apply “hazardous waste” to his 

fields? What will corporate liability lawyers tell companies about creating wallboard for 

use in homes out of “hazardous waste?” The distinction between “intended for 

disposal” and “beneficial use” will be lost on a public hearing the words “hazardous 

waste.” (page 1, Summary) 

- While it is good that the EPA recognizes that there are valid beneficial uses of CCPs, 

the blanket designation of CCRs as hazardous waste will have a chilling effect on 

those who might wish to utilize in CCPs in beneficial applications. (page 2, Summary) 

Rural Utility Service 

- Regulating CCBs as hazardous waste could be the most extreme and costly option for 

EPA 
Interagency Working Comments on Draft Rule under EO 12866 

Page 42 of 46 

- Regulating CCBs as hazardous will have a large undesirable economic impact on 

small electric utilities 

- USDA - RUS makes loans to these small electric utilities, mainly cooperatives 

1. The majority of these electric utilities receive or generate coal-fired generation 

2. The cooperative business model maintains that all increases for electric 

generation are passed onto the consumers (members) 

3. The cost of regulating the CCBs as hazardous waste will be passed on to 

individual consumers where the cost of electricity is already expensive 

- Mine-sites are heavily regulated environments subject to comprehensive and 

environmental protection regulations administered by DOI’s Office of Surface Mining 

and the State counterparts. The EPA regulations governing power plant disposal 

could be a duplication of effort. 
Interagency Working Comments on Draft Rule under EO 12866 

Page 43 of 46 
Interagency Working Comments on Draft Rule under EO 12866 

Page 44 of 46 
Interagency Working Comments on Draft Rule under EO 12866 

Page 45 of 46 
Interagency Working Comments on Draft Rule under EO 12866 

Page 46 of 46