November 19, 2010
The Honorable Lisa Jackson, Administrator Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Attention Docket ID: No. EPA-HQ-RCRA-2009-Q640

Dear Administrator Jackson:
The Missouri Department ofNatural Resources (department) has reviewed the proposed regulatory options proposedbythe U.S. Environmental Protection Agency (EPA) regarding the disposal and beneficial reuse ofcoal combustionresiduals (CCRs) also referred to as coal combustion wastes. The department believes that Missouri has adequate regulatory controls inplace to ensure the proper management ofCCRs. EPA should avoid a "one size fits all" approach that will unnecessarily divert limited technical
resources from existing permitting or compliance and enforcement work. Instead, we ask EPA to recognize that many states have adequate controls in place to protect the environment and public health and urge EPA to promulgate the Subtitle D version ofthe proposal.

In a letter dated November 24,2009 regarding the federal rulemaking for coal combustion byproducts, the department offered comments that described ourissues and
concerns. To restate our concerns, the department offers the following comments. 

### Regulation underResource Conservation andRecoveryAct(RCRA) SubtitleD offers adequateprotection
The department urges EPA to refrain from regulating CCRs as a hazardous waste under RCRA Subtitle C regulations. Missouri has comprehensiveregulations inplace for the design and pennitting ofutility waste landfills (UWLFs) that are used to manage CCRs
as a solid waste. Missouri promulgated regulations in 1997 specifically for UWLFs. Utility waste landfills pennittedpursuant to these regulations are subject to requirements designed to protect public health and the environment, including:

• a geologic and hydrologic evaluation to detennine ifthe site is suitable for construction ofa landfill;



# o Recycled PaperThe Honorable Lisa Jackson, November 19, 2010 Page 2

• a liner with quality assurance/quality control**p~otocols** to ensureproper construction;

• a leachate collection system and a groundwater monitoring system; and

• establishment ofa closureFinancial Assurance Instrument (FAI).

In addition to these requirements, the department inspects all permitted solid waste disposal areas, including UWLFs, at least onceper year to ensure compliance with applicable regulations.

Missouri has received approval to implement RCRA Subtitle D regulations and our staff has the expertise necessary to implement the subtitle D regulations as we already require UWLF'sbuilt and operated inMissouri to comply with most ofthe proposed regulations.

Most coal-burningpowerplants in Missouri manage their fly ash temporarily in surface impoundments prior to beneficial reuse or final disposal in a UWLF. These surface impoundments arebowl-shaped depressions in the ground, in contrast to the raised structures used at the Tennessee Valley Authority facility located in Kingston, Tennessee. Outfalls from these ponds and landfills are routinely monitored under the Missouri State Operating Permit process (i.e., the state equivalent to the National Pollution Discharge Elimination System permittingprocess).

The department believes that considering the current sound management ofCCRs in Missouri, there is no compellingreason from a humanhealth orenvironmental protection standpoint, to managethesematerials as hazardous waste under RCRA Subtitle C. The result would be a significant increase inthe cost ofCCRs management without a corresponding increasein humanhealth or environmental improvement/protection.



### Missouri supports allowing beneficial reuse of CCRs.

Missouri regulations currently allow thebeneficial reuse ofCCRs. Allowingbeneficial
reuse results in less mineral mining and less pollution. Regulation ofCCRs under RCRA Subtitle C could potentially put an end to this practice. Theproposed Subtitle C approach would identify CCRs as a hazardous (special waste) by virtue ofregulating it under RCRA Subtitle C.

In Missouri, testing is required for beneficiallyreused materials to ensure that human health and the environment are protected. The testing required includes an initial analysis ofthe material and additional testing when sources offuel change or when there is a change inplant processes, ifsuch changes cause a change in the constituents generated. The waste to bebeneficiallyreused must also be kept above the seasonal high groundwater table, unless a variance is obtained from the department. This requires an interpretationby a geologist registered in the State ofMissouri. A 3-foot cap ofclean soil is also required unless the material is placed under a structure or a paved/concreted area.The Honorable Lisa Jackson, November 19,2010 Page 3 Regulating CCRs under Subtitle C for disposal is likely to raise concerns for the generators andbeneficial users ofCCRs as it will create a legal precedent for proper disposal yet remain silent for activities related to beneficial reuse, leaving the question open whether CCRs are hazardous waste ornot. Regulation ofCCRs under the "hybrid" approach being considered byEPA may also discourage beneficial reuse due to the hazardous waste "stigma." Additionally, the dual regulation is likely to create enforcement inequities with differing shipping and management requirements depending upon whetherthe material is destined for beneficial
use ordisposal. The cleanup requirements for CCRs destined for beneficial use and involved in a spill maybe ambiguous and mayneed to be clarified. There are currently a number ofstate-wide general beneficial use approvals allowing the use ofCCR as structural fill, as road base, as a soil amendment or for soil stabilization provided they meet certain criteria. The Missouri Department ofTransportation (MoDOT) uses fly ash in many oftheirhighwayprojects. MoDOT has proposed an environmentally sound policy ofrecycling 100 percent ofold pavement from constructionprojects based onthe current regulations related to beneficial reuse.


### There is currently a lack of capacity to accommodateRCRA Subtitle 

### C disposal
There are currentlyno commercial RCRA Subtitle C landfills in Missouri. Federal and State statutes/regulations may effectively limit the siting ofhazardous waste landfills to the northern halfto third ofthe state. Implementation ofthe proposed Subtitle C approach would require a major overhaul ofexisting UWLFs or construction ofnew Subtitle C compliant landfills. Additionally, the siting ofcurrent UWLFs is already difficult due to concerns from property owners and citizens who do not want these facilities located near them orin their communities. By stigmatizing these landfills as Subtitle C , this would further inhibit the siting ofUWLFs as local planning and zoning would likely be implemented to block otherwise**environme~tally** sound sites.


### Increased Costs to Utilities and Consumers Regulation ofCCRs under RCRA Subtitle C would increase disposal costs for utilities. CCRs generated in Missouri mayhave to be shipped out ofstate for reuse ordisposal as hazardous waste under RCRA Subtitle C and/or the current regulatory exemption for "beneficial reuse" is ended. Additional costs would presumablybepassed on to consumers in the form ofhigherutility rates. Counties and municipalities that currently
usebottom ash for snow and ice control would have to purchase othermaterials, probably at a higher cost. MoDOT and other entities using CCRs would have to purchase soil or crushed stone for structural fill, roadbase, as a soil amendment or for soil stabilization at increased costs and further environmental impact. Ultimately, any increase in costs would beborne bythe consumer.The Honorable Lisa Jackson, November 19, 2010 Page 4 

### Implementation costsfor Departmentof NaturalResources
In addition to increasing costs for utilities and consumers, the Subtitle C option potentiallyrepresents a substantial unfunded mandate for states. Preliminary indications
are that nine dry landfills and 20 surface impoundments managing coal combustion residues currently exist in the State ofMissouri. IfMissouri is required to adopt the proposed rules under a Subtitle C scenario, existing land based units undergoing retrofitting, operation and/or closure under Subtitle C will represent a substantial unfunded work load. The State will also be expected to fund the resources forpermitting, operation and closure ofany new CCR surface impoundments and landfills, oversight of groundwater monitoring at such units conducted in accordance with 40 CFR 264/265 Subpart F, and oversight offacility-wide corrective action and financial assurance obligations conducted pursuant to 40 CFR 264 Subpart F (specifically 40 CFR 264.101). Inresponse to an Association ofState and Territorial Hazardous Waste Officials (ASTSWMO) survey onthis specific issue, the department has estimated that a total of eight additional full time equivalents (FTEs) would beneeded to handle the additional work load imposedbyhandling CCR facilities under Subtitle C. At the present time, the department lacks the funding, resources and staffto manage this additional work. 

### Conflicts with existingstate law

Missouri may currently lack legal authority to adopt the ruleregulating this material as a special waste ifthat is the option chosenby EPA. Missouri law excludes CCRmaterials from the state definition ofhazardous waste. EPA's proposed designation ofCCR as Special Waste Number SOOl when treated, stored ordisposed seems to place this material in a sort ofregulatory "no man's land", i.e., it is not a "true" hazardous waste but has to be managed according to hazardous waste standards. Ifwe were unable to adopt the rule because ofthis provision in state law, the authorization status ofour hazardous waste program could be affected. In addition, ifunder the proposed rule, CCRs are classified
as a special waste. Wemaynotbe able to collect fees on the generation and disposition of these materials as we are limited to collecting fees onhazardous waste only. Evenif classified as a "true" hazardous waste, a change inthe state law maybe necessary to allow for collection offees on CCRs as another section ofstate law prohibits fees from being imposed on CCRmaterials. The inability to collect fees poses additional problems because ofthe additional workload and additional FTEs that would be necessary to regulate facilities managing and disposing ofthese materials.

A material must be defined as hazardous waste under state law in order to regulate it and require compliance with hazardous waste management requirements. Clarification would also be needed regarding enforcement ofregulations that establish a separate class of waste. EPA's approach that CCR waste is nothazardous, butrather a "special waste" under the Subtitle C option, will present a challenge to implement. Under this approach, it appears that hazardous waste law and regulations would not apply, and consequently the department mayhave to attempt to regulate the materials as a special waste under theThe Honorable Lisa Jackson, November 19,2010 Page 5

solid waste law. This approach would present difficulties with implementation and enforcement for both the hazardous waste and solid waste programs. Thank you for the opportunity to review and offer comments related to the regulation of management ofCoal Combustion Residuals. The department urges EPA to consider these comments and the issues that the department has raised and selects a regulatory approach consistent with ourrecommendations. Wehave provided additional specific comments in the attachment. Ifyou have any additional questions orconcerns, please feel free to contact me or Mr. Robert Stout ofmy staffat (573) 751-7402. Sincerely,

DEPARTMENT OF NATURAL RESOURCES

DruBuntin Deputy Director for Policy DB:jm

Enclosure

### The departmentwould also like to offer the following specific comments on the proposed rulemaking:
Alternative 1: co-proposal under authority ofSubtitle D 

### Page 35243, Section 257.71 (a)(1) FederalRegister/ Vol. 75, No.U8/ MondayJune 21,2010/ProposedRules. The proposed version states "With a composite liner, as defined inparagraph (a)(2) of this section and leachate collection system between the upper and lower components of the composite liner." Webelieve this should read "With a composite liner, as defined in paragraph (a)(2) ofthis section and leachate collection system placed on top the composite liner." The composite liner mustbe installed in direct and unifonn contact and the leachate collection system should beplaced on top ofand not inthe middle ofthe two 2 parts ofthe liner. 

### Page 35244, Section 257.72 (a)(l) FederalRegister/ Vol. 75, No.U8/ MondayJune 21,2010/ ProposedRules. The proposed version states "With a composite liner, as defined inparagraph (a)(2) of this section and leachate collection system between the upper and lower components of the composite liner." Webelieve this should read "With a composite liner, as defined in paragraph (a)(2) ofthis section and leachate collection system placed on top ofthe composite liner." The composite liner mustbe ininstalled in direct and unifonn contact and the leachate collection system should be placed on top ofand not in the middle ofthe two 2 parts oftheliner. 

### Page 35248, Section 257.94 (a) FederalRegister/ Vol. 75, No.U8/MondayJune 21, 2010/ Proposed Rules. The proposed version references a minimum listing ofdetection monitoring parameters. Yet, this list ofparameters does not contain any ofthe listed constituents ofconcern referenced inthe preamble. Missouri's current groundwater monitoring requirements encompass far more constituents for UWLFs. The proposed detection monitoring parameters appear lackingin orderto beprotective ofgroundwater. 

### Page 35248, Section 257.94 (d) Federal Register/ Vol. 75, No.U8/ MondayJune 21, 2010/ Proposed Rules. The proposed version does not include a time frame for determining a statistically significant increase. Recommend that within 90 days ofthe sampling event that this detenninationbemade. 

### Page 35248, Section 257.94 (d)(2) Federal Register/ Vol. 75, N0.118/ MondayJune 21,2010/ Proposed Rules. The proposed version references paragraph (c)(3). There is no paragraph (c)(3) inthis section, we believe it should be (d)(3).


### Section IX B7 GroundwaterMonitoring/CorrectiveAction Federal Register/ Vol. 75, N0.U8/ MondayJune 21, 2010/ Proposed Rules.We recommend granting states, with approved implementing authority, regulatory flexibility similar to that found in the MSWLF regulation §257.2I(g) and §258.50(h) pertaining to schedules for groundwater monitoring and corrective action. Itis our experience that, due to the variability in groundwater flow, intermittent production or special site conditions, alternate monitoring schedules maybe appropriate for facilities located inunique hydrologic conditions, orwhere well production maybe inadequate for sampling ornotrepresentative ofoverall groundwater quality due to seasonal effects on well production or gradient status.
Theproposed regulations related to the design ofthe groundwater monitoring systems do not currently consider the levels ofnaturally occurring groundwater constituents as part ofthe monitoring system development and the subsequent ability to detect releases from the facility. Werecommend the inclusion of"chemical constituents ofgroundwater" as a factor in system development in §257.9I(c) and recommend establishing basic criterion for determining the most applicable indicatorparameters as part ofsystem development.

Due to the lack ofanthropogenic compounds in CCRs and in the resultant leachate, the determination oftrue landfill impact via the presence ofstatistically significant increases becomes more complicated. Missouri strongly recommends that language be added to proposed section §257.94 to allow for verification resampling for all initial statistically significant increase and that the timeframe for submittal ofa demonstration as per §257.94(3) be subject to state modification. The importance ofstate flexibility with regards to issues related to proposed §257.91-§257.98 cannotbe overstated. Inour experience conducting ongoing reviews ofSubtitle D type groundwater monitoring data for 40 facilities within the State ofMissouri, fluctuations in inorganic constituent concentrations, due to seasonal, temporal or spatial variability, not to mention well installation effects and sampling inducedbiases, makes absolute determination offacility impacts difficultbased on statistical evaluation alone.

Even with adequatebackground sample size and confirmation resampling, the potential for false positives is great given the number ofsamples collected and potential sources of
error (see Robert D. Gibbons Statistical Methods for Groundwater Monitoring 1994 and Unified Guidance EPA 530-R-09-007). Wedo not feel, based upon the significance given to statistical comparisons to background data and the economic ramifications for the determination ofeven a single SSI, that there is compellingreasons to deny approved state programs flexibility in these areas.
As stated above, a lack ofchemical constituents that can be exclusively attributed to the waste containment unit (organics) makes the process ofalternate source demonstration as provided in §257.94 more time consuming and complex. We have not found that current timeframes contained within MSWLF §258.54 or §258.55 are reasonable.

. Based on our experience related to the development and implementation ofgroundwater monitoring systems for waste containment areas, a one yeartimeframe to investigate, design, submit and obtain approval for the installation ofan effective groundwatermonitoring system is unreasonable. We suggest language similar to that in the Subtitle D rule Subpart E §258.50 Page 51022 Federal Register / Vol. 56, No. 196 Wednesday, October 9, 1991 /Rules Regulationwhich allows for phased installation ofsystems. The proposed rule does not address a course ofaction for a facility that based upon geology or hydrology lacks sufficient groundwater to effectively monitor, nor does it allow the state flexibility to address similar issues regarding whether a site canbe effectively monitored.

Has the EPA considered the likelihood that existing surface impoundments are frequently located within floodplains and that due to thepotentiallyreversible gradients present therein, true upgradient conditions maynot exist? Also, how are states to determine as per §257.91(a)(1) ifbackground groundwaterhas beenimpacted for an existing facility without historic data and with such a limited number ofdetection monitoring parameters that does not include the most toxic constituents?

Wehave not found sufficient documentation regarding the development ofAppendix 

### III to Part 257 Constituents for Detection Monitoring. Based upon our experience, the proposed constituents are commonly present in natural waters at orders ofmagnitude differences in concentration. Due to the frequent presence ofspatial variation between wells at the same site, and the presence or absence ofthese constituents in CCRs we recommend that Appendix IV constituents be considered theroutine parameter list for detection monitoring. Failure to sample, and thus establish background and long term data for Appendix IV parameters maypreclude effective monitoring oftheir concentrations during assessment monitoring or corrective action. Webelieve allowing states the right to modify theparameters on a site by sitebasis, based upon an evaluation ofthe chemical constituents ofthe waste or associated leachate is warranted. Such an approach is environmentallyprotective and will allow us to consider the most applicable constituents for statistical**~alysis** and source demonstration purposes.