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 proposed by the U.S. Environmental Protection Agency (EPA) 

regarding the disposal and beneficial reuse of coal combustion residuals (CCRs) also 

referred to as coal combustion wastes. The department believes that Missouri has 

adequate regulatory controls in place 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 our issues and 

concerns. To restate our concerns, the department offers the following comments. 

Regulation under Resource Conservation and Recovery Act (RCRA) Subtitle D offers 

adequate protection 

The department urges EPA to refrain from regulating CCRs as a hazardous waste under 

RCRA Subtitle C regulations. Missouri has comprehensive regulations in place 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 pennitted pursuant 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 of a landfill; 

o Recycled Paper 
The Honorable Lisa Jackson, 

November 19, 2010 

Page 2 

•	 a liner with quality assurance/quality control p~otocols to ensure proper
 

construction;
 

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

• establishment of a closure Financial Assurance Instrument (FAI). 

In addition to these requirements, the department inspects all permitted solid waste 

disposal areas, including UWLFs, at least once per 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's built and operated in Missouri to comply with most ofthe proposed regulations. 

Most coal-burning power plants in Missouri manage their fly ash temporarily in surface 

impoundments prior to beneficial reuse or final disposal in a UWLF. These surface 

impoundments are bowl-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 permitting process). 

The department believes that considering the current sound management of CCRs in 

Missouri, there is no compelling reason from a human health or environmental protection 

standpoint, to manage these materials as hazardous waste under RCRA Subtitle C. The 

result would be a significant increase in the cost ofCCRs management without a 

corresponding increase in human health or environmental improvement/protection. 

Missouri supports allowing beneficial reuse ofCCRs. 

Missouri regulations currently allow the beneficial reuse ofCCRs. Allowing beneficial 

reuse results in less mineral mining and less pollution. Regulation of CCRs under RCRA 

Subtitle C could potentially put an end to this practice. The proposed 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 beneficially reused 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 of fuel change or when there is a 

change in plant processes, ifsuch changes cause a change in the constituents generated. 

The waste to be beneficially reused must also be kept above the seasonal high 

groundwater table, unless a variance is obtained from the department. This requires an 

interpretation by a geologist registered in the State ofMissouri. A 3-foot cap of clean 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 and beneficial users of CCRs 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 or not. 

Regulation of CCRs under the "hybrid" approach being considered by EPA 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 whether the material is destined for beneficial 

use or disposal. The cleanup requirements for CCRs destined for beneficial use and 

involved in a spill may be ambiguous and may need to be clarified. There are currently a 

number of state-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 oftheir highway projects. MoDOT has proposed an environmentally sound 

policy ofrecycling 100 percent of old pavement from construction projects based on the 

current regulations related to beneficial reuse. 

There is currently a lack ofcapacity to accommodate RCRA Subtitle C disposal 

There are currently no 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 of existing UWLFs or construction ofnew Subtitle C 

compliant landfills. Additionally, the siting of current UWLFs is already difficult due to 

concerns from property owners and citizens who do not want these facilities located near 

them or in 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 of CCRs under RCRA Subtitle C would increase disposal costs for utilities. 

CCRs generated in Missouri may have to be shipped out ofstate for reuse or disposal as 

hazardous waste under RCRA Subtitle C and/or the current regulatory exemption for 

"beneficial reuse" is ended. Additional costs would presumably be passed on to 

consumers in the form ofhigher utility rates. Counties and municipalities that currently 

use bottom ash for snow and ice control would have to purchase other materials, probably 

at a higher cost. MoDOT and other entities using CCRs would have to purchase soil or 

crushed stone for structural fill, road base, as a soil amendment or for soil stabilization at 

increased costs and further environmental impact. Ultimately, any increase in costs would 

be borne by the consumer. 
The Honorable Lisa Jackson, 

November 19, 2010 

Page 4 

Implementation costsfor Department ofNatural Resources 

In addition to increasing costs for utilities and consumers, the Subtitle C option 

potentially represents 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 for permitting, 

operation and closure of any 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). 

In response to an Association of State and Territorial Hazardous Waste Officials 

(ASTSWMO) survey on this specific issue, the department has estimated that a total of 

eight additional full time equivalents (FTEs) would be needed to handle the additional 

work load imposed by handling CCR facilities under Subtitle C. At the present time, the 

department lacks the funding, resources and staff to manage this additional work. 

Conflicts with existing state law 

Missouri may currently lack legal authority to adopt the rule regulating this material as a 

special waste if that is the option chosen by EPA. Missouri law excludes CCR materials 

from the state definition ofhazardous waste. EPA's proposed designation ofCCR as 

Special Waste Number SOOl when treated, stored or disposed 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, if under the proposed rule, CCRs are classified 

as a special waste. We may not be able to collect fees on the generation and disposition of 

these materials as we are limited to collecting fees on hazardous waste only. Even if 

classified as a "true" hazardous waste, a change in the state law may be necessary to 

allow for collection offees on CCRs as another section of state law prohibits fees from 

being imposed on CCR materials. 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 not hazardous, but rather 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 may have to attempt to regulate the materials as a special waste under the 
The 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 our recommendations. We have provided additional specific comments in 

the attachment. If you have any additional questions or concerns, please feel free to 

contact me or Mr. Robert Stout ofmy staff at (573) 751-7402. 

Sincerely, 

DEPARTMENT OF NATURAL RESOURCES 

DruBuntin 

Deputy Director for Policy 

DB:jm 

Enclosure 
The department would also like to offer the following specific comments on the 

proposed rulemaking: 

Alternative 1: co-proposal under authority of Subtitle D 

Page 35243, Section 257.71 (a)(1) Federal Register/ Vol. 75, No.U8/ Monday June 

21,2010/ Proposed Rules. 

The proposed version states "With a composite liner, as defined in paragraph (a)(2) of 

this section and leachate collection system between the upper and lower components of 

the composite liner." We believe 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 must be installed in direct and unifonn contact and 

the leachate collection system should be placed on top of and not in the middle ofthe two 

2 parts ofthe liner. 

Page 35244, Section 257.72 (a)(l) Federal Register/ Vol. 75, No.U8/ Monday June 

21,2010/ Proposed Rules. 

The proposed version states "With a composite liner, as defined in paragraph (a)(2) of
 

this section and leachate collection system between the upper and lower components of
 

the composite liner." We believe 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 must be in installed in direct and unifonn contact
 

and the leachate collection system should be placed on top of and not in the middle ofthe
 

two 2 parts ofthe liner.
 

Page 35248, Section 257.94 (a) Federal Register/ Vol. 75, No.U8/ Monday June 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 of concern
 

referenced in the preamble. Missouri's current groundwater monitoring requirements
 

encompass far more constituents for UWLFs. The proposed detection monitoring
 

parameters appear lacking in order to be protective of groundwater.
 

Page 35248, Section 257.94 (d) Federal Register/ Vol. 75, No.U8/ Monday June 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
 

detennination be made.
 

Page 35248, Section 257.94 (d)(2) Federal Register/ Vol. 75, N0.118/ Monday June
 

21,2010/ Proposed Rules.
 

The proposed version references paragraph (c)(3). There is no paragraph (c)(3) in this
 

section, we believe it should be (d)(3).
 

Section IX B7 Groundwater Monitoring/Corrective Action Federal Register/ Vol. 

75, N0.U8/ Monday June 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. It is our 

experience that, due to the variability in groundwater flow, intermittent production or 

special site conditions, alternate monitoring schedules may be appropriate for facilities 

located in unique hydrologic conditions, or where well production may be inadequate for 

sampling or not representative ofoverall groundwater quality due to seasonal effects on 

well production or gradient status. 

The proposed regulations related to the design ofthe groundwater monitoring systems do 

not currently consider the levels of naturally occurring groundwater constituents as part 

of the monitoring system development and the subsequent ability to detect releases from 

the facility. We recommend the inclusion of "chemical constituents of groundwater" as a 

factor in system development in §257.9I(c) and recommend establishing basic criterion 

for determining the most applicable indicator parameters as part ofsystem development. 

Due to the lack of anthropogenic 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 of a 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 cannot be overstated. In our 

experience conducting ongoing reviews of Subtitle 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 induced biases, makes absolute determination of facility 

impacts difficult based on statistical evaluation alone. 

Even with adequate background 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). We do not feel, based upon the significance given 

to statistical comparisons to background data and the economic ramifications for the 

determination of even a single SSI, that there is compelling reasons to deny approved 

state programs flexibility in these areas. 

As stated above, a lack of chemical constituents that can be exclusively attributed to the 

waste containment unit (organics) makes the process of alternate 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 of groundwater 

monitoring systems for waste containment areas, a one year timeframe to investigate, 

design, submit and obtain approval for the installation of an effective groundwater 
monitoring 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 Regulation which allows for phased installation of systems. The 

proposed rule does not address a course of action 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 can be effectively monitored. 

Has the EPA considered the likelihood that existing surface impoundments are frequently 

located within floodplains and that due to the potentially reversible gradients present 

therein, true upgradient conditions may not exist? Also, how are states to determine as 

per §257.91(a)(1) ifbackground groundwater has been impacted for an existing facility 

without historic data and with such a limited number ofdetection monitoring parameters 

that does not include the most toxic constituents? 

We have not found sufficient documentation regarding the development of Appendix 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 the routine parameter list for 

detection monitoring. Failure to sample, and thus establish background and long term 

data for Appendix IV parameters may preclude effective monitoring oftheir 

concentrations during assessment monitoring or corrective action. We believe allowing 

states the right to modify the parameters on a site by site basis, based upon an evaluation 

of the chemical constituents ofthe waste or associated leachate is warranted. Such an 

approach is environmentally protective and will allow us to consider the most applicable 

constituents for statistical ~alysis and source demonstration purposes.