# Comment Summary and Response Document

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes; Disposal of

Coal Combustion Residuals from Electric Utilities ;

Proposed Rule

(Docket # EPA

- HQ

- RCRA

- 2009

- 0640)

Volume 10 : Closure and Post

- Closure Care

December 20142

Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for

the management of coal combustion residuals (CCRs) which was published in the Federal

Register on June 21, 2010

. This proposal, under the Resource Conservation and Recovery Act

(RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at

electric utilities and from independent power producers

. Two regulatory options were proposed

. Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May

2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes

subject to hazardous waste regulation s under subtitle C of RCRA when destined for disposal in

landfill or surface impoundments

. Under the second option, EPA proposed to leave the Bevill

determination in place and regulate the disposal of CCR as non

- hazardous solid waste under

subtitle D of RCRA by issuing minimum nat ional criteria . Both options would require

composite liners, groundwater monitoring, structural stability requirements, corrective action,

and closure/post closure care

.
EPA also solicited comments on all aspects of both proposed options. The Agency

rec eived over 450,000 comments on the proposed rule

. The majority of the comments focused

on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C

or subtitle D

. EPA also conducted eight public hearings and took additio nal comments on the

proposed rule. EPA has established three dockets for this regulatory action under Docket ID No.

EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No.

EPA

- HQ

- RCRA

- 2012

- 0028

. All documents in these dockets are av ailable at

http://www.regulations.gov

. Although listed in the index, some information is not publicly

available, e.g., Confidential Business Information (CBI) or other information whose disclosure is

restricted by statute. Certain other material, such as copyrighted material, is not placed on the

Internet and will be publicly available only in hard copy form. Publicly available docket

materials are available either electronically in http://www.regulations.gov or in hard copy at the

OSWER Docket, EP A/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW,

Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202) 566

– 17 44, and the telephone number for the OSWER Docket is 202

– 566

– 0276.3

After reviewing all the comments and additional data received, EPA is promulgating a
final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA

. This rule

addresse s the risks from structural failures of CCR surface impoundments, groundwater

contamination from the improper management of CCR in landfills and surface impoundments

and fugitive dust emissions

. The Agency has developed seventeen volumes of summarizing comments on major

topics covered in the proposed rule (see table below) and the Agency’s responses to those

comments, as well as a separate volume summarizing comments provided during public

hearings. Since EPA is finalizing a rule under subtitle D of RCR A, only those comments

submitted on the proposed subtitle C rule that are also applicable to the final rule are addressed

in the comment and response documents.

Volume Topic

1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Professional

Engineer/Recordkeeping, State Submissions, Posting to the

Internet/Finance Assurance/Alternative Approaches)

3 Scope and Purpose/Effective Dates/Applicability/Off

- site

Disposal/Definitions

4 Location Restrictions

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity

7 Operating Criteria: Endangered species/Surface water/Inspections/Run

- on

Run

- off

8 Operating Criteria: Air Criteria

9 Groundwater and Corrective Action

10 Closure and Post

- Closure Care

11 Additional Comments including Overfills/ Harmonization with ELG

.
12 Beneficial Use4

Volume Topic

13 Risk Assessment

14 State Authorities, Programs and Regulations

15 Compendium of Damage Cases

16 Regulatory Impact Analysis (RIA)

17 EPA’s Assessment Program

This volume summarizes comments received on the proposed closure and post

- closure care

requirements.5

Section 4.4.8

- Closure and post

- closure care (35207

- 35210)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 28 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) (4A) Commenter Type: State Government
Other Sections: 4.6.1 4.4.9.1

Comment Excerpt Text: Landfills receiving CCR that do not meet RCRA Subtitle D requirements should only be allowed to continue accepting CCR for two years following the effective date of the Final EPA CCR Ru le provided certain conditions are met. Those conditions should include a legally binding commitment from the landfill owner/operator to properly close the landfill with a RCRA Subtitle D landfill cap; closure and post

- closure monitoring requirements, incl uding groundwater monitoring; and financial assurance sufficient to fund closure and post

- closure requirements, as well as environmental investigation and remediation in the event that becomes necessary.

EPA Response : The Agency agrees with the commenter that CCR landfills should be subject to closure requirements, including final cover requirements when CCR is left in place, in addition to closure and post

- closure monitoring requirements, including groundwater monit oring. Closure requirements are discussed in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 29 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) (4A) Commenter Type: State Government
Other Sections: 4.4.4 .1 4.4.5.1 4.4.6 4.4.7.1 4.4.9.1

Comment Excerpt Text: New landfills and expansion of existing landfills to be used for the disposal of CCR should be required to meet RCRA Subtitle D municipal solid waste and design criteria including geologic stability assessment, engineering design criteria, operational standards, groundwater monitoring, quarterly inspections, closure (including cap), post

- closure monitoring and maintenance, financial assurance and notification of CCR disposal on the property deed. A se ismic stability analysis should be performed as part of the initial site suitability analysis. The landfill or landfill expansion should be designed to have a structural stability safety factor of 1.5 and a seismic safety factor of 1.5.

EPA Response : The Agency agrees with the commenter that new CCR landfills and lateral expansions of CCR landfills should be subject to closure and post

- closure care requirements, including monitoring and maintenance during the post

- closure care period and requiring
notatio ns to the deed. Closure requirements are discussed in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 14 Organization 1 : MidAmerican Energy Holdings Company (MidAmerican) (4B) Commenter Type: Electric Utility Company6

Comment Excerpt Text: MidAmerican also has concerns about the proposed period of time by which a closure must be completed once a surface impoundment stops receiving CCR. The EPA proposal provides that an owner and or operator must begin closure activities within 30 days after the date on which the CCR landfill or impoundment receives the final receipt of CCR and must complete closure within 180 days following the start of closure activities. [FN 21: See 75 Federal Register at 35244.] This effectively means that a CCR impoundment that is still operating on the effective date of the final rule, but subsequently ceases receiving CCR after the effective date of the final rule, has only 210 days to complete closure after the final receipt of CCR to the unit. It will be operationally impossible to meet this compliance timeframe. Because a substantial number of sites nationwide will have to be closed at roughly the same time period, electric utilities will be competing for a limited supply of personnel and equipment to clo se multiple sites. Assuming arguendo that there is no shortage of equipment and personnel, it will still be difficult for facilities to close their disposal units in the proposed timeframes that EPA proposes due to the
sheer size and volume of these surfac e impoundments. Surface impoundments would be required to close by removing liquid wastes or solidifying remaining wastes. However, dewatering alone for larger units can take years (not months) to complete. EPA acknowledges that its closure time
frames wer e borrowed directly from the existing closure time frames for municipal solid waste landfills under 40 Code of Federal Regulations Part 258. This is not an appropriate comparison as CCR disposal units are often much larger than solid waste landfills and co ntain significant amounts of water. Further, solid waste landfills are also frequently built in individual, smaller discrete cells which are typically closed when capacity is reached in each cell.

EPA Response : This issue is addressed in Unit VI. M .4 of t he preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06299

- 15 Organization 1 : MidAmerican Energy Holdings Company (MidAmerican) (4B) Commenter Type: Electric Utility Company
Other Sections: 3.5.1 4.6.1.4

Comment Excerpt Text: The Timing and Transition Period is Inadequate

.

EPA’s anticipated timing of implementation of Subtitle C regulation in states is extremely aggressive. Regardless of the length of time necessary for a state to adopt the requisite regulatory framework and program, the length of time for facilities to comply is inadequate. This situation is further complicated in a state without delegated authority to implement RCRA’s Subtitle C program. Iowa is one of two states in that situation. MidAmerican Energy Company’s facilities
would be amon g the first to be subject to the onerous requirements associated with Subtitle C, which would be administered by EPA Region 7. A reduction in the time associated with compliance with Subtitle C requirements, simply because the state does not run the progra m is an unacceptable consequence of the lack of state delegation. MidAmerican Energy Company and
other entities with coal

- fueled generation in Iowa should not be penalized by requiring compliance any earlier than any other state. To the contrary, if EPA fi nalizes its Subtitle C option (which it should not, based on the comments herein), all states should be required to comply at the same time, on a date certain, rather than linking the compliance date to the date the state7

completes its rulemaking processes and that time should be, at a minimum, ten years from the final rule. In the event that a particular facility has created an “imminent and substantial harm” situation, EPA has current authority to, and should, address such a circumstance on an individual
basis.

As further set forth below, MidAmerican believes that the EPA should adopt the Subtitle D “Prime” approach. However, if the EPA is to select a Subtitle C or D approach, MidAmerican recommends that the EPA extend the actual closure requirements to t en years. If warranted, facilities with the highest risk or demonstrated impacts could be addressed within the five to seven year time period. MidAmerican also recommends that the EPA not establish a specific
time frame for the closure of individual units. Instead, we urge the EPA to require utilities to close CCR surface impoundments consistent with a site specific closure plan approved by an individual state and developed/certified by a registered professional engineer or hydrologist.

EPA Response : In r egard to the commenter’s recommendation that the final rule not establish a time frame for the closure of individual units and instead the rule should require utilities to close CCR surface impoundments consistent with a site specific closure plan approved by an individual state and developed/certified by a registered professional engineer or hydrologist, this issue is addressed in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 6 Organization 1 : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company (4C) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text:
B. EPA Should Revise the Subtitle D Sta ndards to Better Reflect CCB Disposal Operations.

Southern Company reiterates its view that federal action with respect to CCBs is unwarranted and unnecessary. However, among the three regulatory options EPA puts forth, a Subtitle D Prime program is the most appropriate. Southern Company assumes that a D Prime program would include Subtitle D standards addressing essentially the same issues as those included in EPA’s Subtitle D regulatory proposal. Accordingly, Southern Company offers the following

commen ts on individual program elements included in the Subtitle D proposal.

1. Compliance with EPA’s Proposed Time Frame for Closure of CCB Disposal Facilities Is Physically Impossible in Some or All Cases. Southern Company subsidiaries own and operate

approx imately twenty

- two facilities that have surface impoundments for CCB disposal, many of which are hundreds of acres in size. Some of these facilities include areas of dry ground within the outer boundary. Nevertheless, the typical surface impoundment contai ns some combination of open water and saturated areas as more than half its interior area.

EPA’s proposed Subtitle D regulations include several closure

- related deadlines, including a
five

- year deadline to close facilities that do not meet unstable area requirements, with the8

possibility of a two

- year extension; [Footnote 42: See id. at 35243 (proposed 40 C.F.R. 257.65).]
a five

- year deadline to retrofit existing CCB facilities; [Footnote 43: See id. at 35244 (proposed 257.71(g)).] and in any case in whic h closure is required, a closure deadline of 180 days from the initiation of the closure process. [Footnote 44: See id. at 35253 (proposed 257.100(k)).] As noted elsewhere in these comments, Southern Company opposes a mandatory closure requirement,
with no opportunity to evaluate the performance of a facility, in cases where the facility was built prior to the enactment of new standards. EPA should first allow for consideration of whether existing facilities are safe and effective. However, assuming closure may be required in some cases, the five

- year closure deadline and the 180

- day period for completion of the closure process are unrealistic and, in some cases, physically impossible to meet.

If closure of the typical CCB surface impoundment were required , at least two major problems would be immediately apparent with these deadlines. First, at most surface impoundments, virtually the entire area is active. Therefore, CCB surface impoundments would have to be closed all at the same time. Unlike the typical MSWLF, which typically operates smaller cells within the facility footprint and closes them as they are filled, the scale of the closure operation would be much greater. Compared to the usual landfill closure process, the utility would be required to proc ure a vastly larger volume of clay and soil and use many more contractors and employees. Further, since all utilities presumably would be on the same regulatory deadlines, any given utility would likely be in competition with other utilities for substantia lly the same resources. Thus, unrealistic time constraints also would create an artificial and unnecessary
increase in cost.

Second, dewatering the typical surface impoundment alone

— not counting the application of materials, grading, and other activities that cannot proceed until dewatering is complete

— is likely to be impossible within 180 days at most or all existing surface impoundments and may take several years in some cases. The volume of water and saturated materials within the perimeter dike of an ash pond of hundreds of acres is enormous. Dewatering is likely to be a slow process that relies largely on drains and gravity; quicker dewatering alternatives, such as breaching the dike to release saturated material, are not realistic alternatives. Under those circumstances, a hard deadline of five years, plus two years in some cases, would place the facility owner at risk of noncompliance for a facility that was built and operated in accordance with all laws and regulations applicable at the time, for present circumstances that are beyond the facility’s reasonable control, due solely to the retroactive application of a new regulatory standard. The assessment for noncompliance in that situation would be unfair and needlessly punitive.

Part XII.A of the comments of the Utility Solid Waste Activities Group (“USWAG”), dated November 19, 2010 , and submitted to this docket (hereinafter “USWAG Comments”) further explain the physical realities inherent in closing existing landfills and surface impoundments. Southern Company is a member of U SWAG and supports the USWAG Comments on this issue

.

EPA Response : In regard to time frames to initiate and complete closure of a CCR unit,
EPA addresses these issues in Unit VI. M .4 of the preamble.9

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 101 Organi zation 1 : Earthjustice et. al. (4D) Commenter Type: Advocacy Group
Other Sections: 4.6.1.4 3.4.1.4.2

Comment Excerpt Text: There is no reason to allow the continued use of existing surface impoundments for 5 years after the date the rule becomes effective, and then allow two additional years to close the surface impoundment. It is well known that leakage from many surface impo undments is already contaminating groundwater, polluting surface water, and harming biota. Further, the potential for catastrophic failure is far greater during active use than after the impoundments are closed. Once an impoundment is properly closed and c apped, water from the wastes will no longer be impounded and most, if not all, of the precipitation will run off.

Three years of continued use after the rules are finalized in the Federal Register and operators have had due notice, should be more than ad equate to implement other options for material handling. Following cessation of use, an engineered closure should be required within 1 year (12 months).

EPA Response : EPA Response : In regard to time frames to initiate and complete closure
of a CCR unit , EPA addresses these issues in Unit VI. M .4 of the preamble. I n addition, the commenter did not provide the Agency with information supporting why 1 year is sufficient

to com plete closure of all CCR units.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 123 Organization 1 : Earthjustice et. al. (4D) Commenter Type: Advocacy Group

Comment Excerpt Text: Throughout the post

- closure care period, the owner or operator of a CCR disposal facility must be required to report monitoring data to the appropriate regulato ry agency. Without these reporting requirements, there is no way to assure that observations and measurements are being made. From a regulatory agency perspective, the regulatory agency must maintain a sufficient number of knowledgeable staff, who can inte rpret the monitoring data submitted and inspect the facilities on a routine basis to confirm compliance with the post

- closure requirements.

At a minimum, quarterly groundwater monitoring data should be required. In addition to the groundwater data, annua l reporting of leachate production during the initial period of drainage should be required. If the leachate production drops to zero, biennial reporting of leachate data should be adequate unless there has been a deliberate or inadvertent disturbance of t he cap, or if the contaminants of the concern are detected in the quarterl y groundwater samples.

EPA Response : The Agency addresses post

- closure issues in Units VI.M. 7 through M.10 of the preamble

. In addition, the post

- closure care regulatory text is located in §257.104, which requires groundwater monitoring throughout the post

- closure care period, in addition to providing notification to the state and making the data publicly available on an inte rnet site.10

The frequency of groundwater monitoring is addressed in Unit VI.K of the preamble. The final rule also requires the owner or operator of the CCR unit to monitor the leachate collection and removal system.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 064 0

- 06357

- 6 Organization 1 : Kansas City Power & Light Company (4E) Commenter Type: Electric Utility Company

Comment Excerpt Text: Compliance with EPA’s Proposed Timeframe for Closure of Surface Impoundments and Landfills is Impossible

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surface impoundments opera ting in an environmentally sound manner could continue to operate, there will undoubtedly be a significant number of impoundments that will have to close. Therefore, a more realistic and achievable closure process is necessary under this option.

Within fi ve years of the effective date of the Subtitle D rules, existing surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. 75 Fed. Reg at 35244 (proposed 40 C.F.R. § 257.71(g)). Beca use these obligations may be impossible to fulfill and would impose significant operational costs, KCP&L agrees with EPA that “many surface impoundments may close as a result of these requirements.” Id. at 35199. Many of these disposal units will need to c lose pursuant to the Subtitle D closure framework. The proposed timetables for actually closing these landfills and surface impoundments, however, is totally unrealistic and many facilities will be physically incapable of meeting these schedules.

While ex isting units may be allowed five years to continue operating, the period of time by which closure must be completed once they cease operating

– i.e., stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially surface impoundments. The proposal provides that an owner/operator must bring closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs and must complete closure within 180 days following the start of closure activities. Id. at 35253 (proposed 40 C.F.R. § 257.100(k)). This means, for example, that a CCR impoundment that is still operating on the effective date of the rules but subsequently ceases receiving CCRs after the
effective date of the rules has only 210 days to complete closure after the final receipt of CCRs.

Given the number and size of the disposal units that utilities operate, a significant number of units will not be able to complete closure within this 210

- day timeframe. First, b ecause a large number of sites will have to be closed during roughly the same timeframe, utilities will not be able to obtain the personnel and equipment necessary to close multiple sites, especially since other companies will need to obtain the same resou rces at the same time. Furthermore, even if sufficient manpower/equipment is available, some owners/operators will simply be unable to close their disposal units in the timeframes EPA proposes, due to the size of certain CCR11

impoundments and landfills.

Fo r instance, surface impoundments would be required to close by removing liquid wastes or solidifying remaining wastes. Id. at 35252 (proposed 40 C.F.R. § 257.100(c)(1)). For very small surface impoundments, it is conceivable that an owner/operator could co mply with this requirement within the proposed time frame; for many surface impoundments, however, dewatering the impoundment alone can take several years to complete, making it physically impossible to comply with EPA’s closure timeframe.

Furthermore, la ndfills typically close each component cell when the cell reaches its disposal capacity so that many cells have already been “closed” when the landfill begins final closure. Surface impoundments, on the other hand, must be entirely dewatered before closure can even begin for any portion of the impoundment. While EPA’s proposed closure timeframe may be appropriate for some landfill types, it is entirely inappropriate to apply this same timeframe to surface impoundments.

Additionally, 210 days may not be suf ficient to acquire the materials needed to conduct and complete closure. For example, due to the significant volume of clay that is needed to cover an impoundment hundreds of acres in size (as well as the likelihood that other units may need to
close in th e same timeframe), there may be insufficient supply of clay and/or it may be impossible to transport the needed volume of clay to the site. Moreover, in some circumstances, states may not be able to provide final approval of a facility’s closure plan befor e the end of the
210

- day closure time limit, putting facilities in automatic non

- compliance through no fault of their own, but due simply to limited state resources.

EPA Response : In regard to time frames to initiate and complete closure of a CCR unit,

EP A addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06357

- 7 Organization 1 : Kansas City Power & Light Company (4E) Commenter Type: Electric Utility Company

Comment Excerpt Text: Given the disparity in the sizes of these units, the length of time necessary to dewater impoundments, and the need for many of these units to be closed when the rules come into effect, KCP&L strongly recommends that EPA not establish a specific timeframe for closure. Instead, KCP&L urge s EPA to require utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional. The establishment of a closure plan, with set schedules, is the most eff ective method to account for the many variables associated with the closure of these units and is the approach commonly used by utilities. Under Kansas and Missouri regulation, the closure plans can be approved to take into account the time of year, geolog y, hydrology, and other local conditions which will dictate the details of the closure timetable while being protective of the environment. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly
unrealistic closure schedules.12

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 32 Organization 1 : Dynegy Inc (4F) Commenter Type: Electric Utility Company

Comment Excerpt Text: For all of these reasons, Dynegy believes that proposed § 257.100(j) and (k) should be
eliminated. Given the numerous site

- specific factors that determine how quickly a surface impoundment can be closed (e.g., size of the impoundment, amount of water and CCRs in the impoundment, permitting, weather), EPA should not establish a specific "one size fits all" deadline for closure of surface impoundments. Instead, the regulations should require clos ure plans to include a set closure schedule that achieves closure as soon as reasonably possible, as verified by a registered professional or approved by the state.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 8 Organization 1 : Garrett & Moore, Inc. (4G) Commenter Type: Other Company
Other Sections: 4.6.1.1 4.6.1.2 4.6.1.4

Comment Excerpt Text: Compliance Time Frame (§ 257.65 (a) and § 257.71 (a))

The compliance deadline re quired by this rule will be unachievable in many circumstances. The compliance deadline does not consider the need for the Owner to implement an alternative to the existing CCR surface impoundment or existing CCR landfill. As an example, many Owners will
b e converting facilities to dry handling of fly ash in order to phase out the existing CCR surface impoundment. Owners will be required to site, design, permit, and construct new CCR landfills to provide replacement disposal capacity. The time frame require d to site, design, permit, and construct a landfill in today’s regulatory environment is at least 5 to 10 years.

In addition, due to the size of many existing CCR surface impoundments, the actual closure after a replacement facility is operating will take several years. While some Owners believe capping existing CCR surface impoundments in place will be an adequate closure, there will definitely be circumstances where removal and decontamination of existing CCR surface impoundments for disposal in new CCR landfills will be the only prudent closure option. As an example, a 100

- acre existing CCR surface impoundment with 15 feet of ash equates to 2.4 million cubic yards of ash. An aggressive excavation project moving 5,000 cubic yards of ash per day will requi re at least 18 months. Generally, the closure project will take 2 years or more in addition to the 5 to 10 years required.

EPA should adopt a phased approach for compliance whereby ceasing operations in an existing CCR surface impoundment would have a reg ulatory deadline of 7 years. Then closure of existing13

CCR surface impoundment should be completed within 3 years. An extension clause should be added for consideration of very large existing CCR surface impoundments such as those greater
than 100 acres.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency considered the excavation project data provided by the commenter in developing the timeframes for closure.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 13 Organization 1 : Hoosier Energy Rural Electric Cooperative (REC), Inc. (4H) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: D. Implementation Requirements

With both the Subtitle C and D proposals, timelines for clos ures, retrofits and other requirements are often unrealistic. For example, if ash ponds are required to be closed, factors affecting those closures include not only the ability to retrofit dry handling and alternative disposal facilities but
weather become s an issue also. The arid states, it will not take as much time to dewater a pond as it would in the Midwest that can average over 40 inches of rain a year. Any time requirement that does not allow a liberal variance procedure will cause utilities signific ant problems and some impossibilities in implementation and is therefore unrealistic

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 39 Organization 1 : NiSource Corporate Services (4I) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: Closure (40 C.F.R. §§ 257.65, 257.71 and 257.100)

The timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed d esign and operating standards is too short. Section 257.60 would require existing landfills and surface impoundments to meet certain location restrictions or performance criteria (e.g., not be located in unstable areas or have engineering measures incorpor ated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). Further, Section 257.71 requires within five years of the effective date of the Subtitle D rules, existing surface impoundme nts to be dredged and have installed a composite liner and leachate collection system, or close. Because these obligations may be impossible to meet and would otherwise impose significant operational costs on NIPSCO, NiSource agrees with EPA that “many sur face impoundments may close as a result of these requirements.” 75 Fed Reg. at 35199. Likewise, a number of landfills may also close if they are unable to comply with14

the “unstable areas” location restriction. The proposed time tables for actually closing these landfills and surface impoundments, however, is totally unrealistic and NIPSCO will be physically incapable of meeting these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated op erating standards to close within 5 years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal cap acity and the unit poses no immediate threats to human health or the environment.[Footnote 3 Oddly, CCR surface impoundments that are not able to install a composite liner system would not be able to
make this demonstration and would have to close within 5 years of the effective date of the rules. 40 C.F.R. § 257.71(g). EPA provides no explanation as to why it will grant an extension under 40 C.F.R. § 257.65 and not under 40 C.F.R. § 257.71.] While existing units may be allowed 5 years to continue operating , the period of time by which closure must be completed once they cease operating

– i.e., stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially CCR surface impoundments. The proposal provides that an owner/operat or must begin closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs [Footnote 4: There is an exception to this requirement allowing closure to begin no later than 1 year from the last receipt of CCRs if the unit has remaining capacity and there is a reasonable likelihood that the unit will receive additional CCRs. Proposed at § 257.100(j).] and must complete closure within 180 days following the start of closure activities. 40 C.F. R. § 257.100(k). This means, for example, that a CCR surface impoundment that is still operating on the effective date of the rules, but subsequently ceases receiving CCRs after the effective date of the rules, has only 210 days to complete closure after t he final receipt of CCRs. Given that CCRs have lower toxicity concerns than other Subtitle C wastes, it is unclear why EPA is more stringent with CCR surface impoundment closure requirements than with other Subtitle C facilities. Most, if not all other
Sub title C facilities, close pursuant to an approved plan, not an arbitrary regulatory deadline.

Given the number and size of the disposal units NIPSCO operates, a significant number of units will not be able to complete closure within this 210 day time fra me. First, because a large number of sites will have to be closed during roughly the same time frame, NIPSCO will not likely be able to obtain the personnel and equipment necessary to close multiple sites, especially since other companies will need to obta in the same resources at the same time. Furthermore, even if sufficient manpower/equipment is available, NIPSCO will simply be unable to close its disposal units in the timeframes EPA proposes, due to the size of the CCR surface impoundments.

For instance , surface impoundments would be required to close by removing liquid wastes or solidifying remaining wastes. 40 C.F.R. § 257.100(c)(1). For many of the CCR surface impoundments NIPSCO operates, dewatering the impoundment alone can take several years to

com plete, making it physically impossible to comply with EPA’s closure time frame.

Another aspect which must be considered is the fact that retrofitting and or closing of CCR surface impoundments will require the electric generating unit to undergo an outag e. Given the length of time required to retrofit or close a CCR surface impoundment, NIPSCO expects the15

generating unit outage to be considerably longer than a typical outage. Given the scope of the proposal, NiSource expects many utilities to undergo exte nded generating unit outages during the same period of time. This will certainly have an adverse impact on electric supply reliability
on a nationwide level.

Given the expected length of time necessary to dewater impoundments, and the need for many of
the se units to be closed when the rules come into effect, NiSource recommends that EPA not establish a specific time frame for closure. Instead, NIPSCO should require utilities to close CCR surface impoundments and landfills consistent with a closure plan app roved by a state, or developed and certified by a registered professional engineer or other qualified environmental professional. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associ ated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wh olly unrealistic closure time schedules

.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 33 Organization 1 : Southern Illinois Power Cooperative (4J) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: Closure (40 C.F.R. §§ 257.65, 257.71 and 257.100)

The timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards is too short. Section 257.60 would require existing landfills and surface impoundments to meet certain location restrictions or performance criteria (e.g., not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). Further, Section 257.71 requires within five years of the effective date of the
Subtit le D rules, existing surface impoundments to be dredged and have installed a composite liner and leachate collection system, or close. Because these obligations may be impossible to meet and would otherwise impose significant operational costs on SIPC, SIP C agrees with EPA that “many surface impoundments may close as a result of these requirements.” 75 Fed Reg. at 35199. Likewise, a number of landfills may also close if they are unable to comply with the “unstable areas” location restriction. The proposed t ime table for closing such landfills and surface impoundments, however, is unrealistic and SIPC will be physically incapable of meeting
these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or

as sociated operating standards to close within 5 years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alternative d isposal capacity and the16

unit poses no immediate threats to human health or the environment.[Footnote 3: Oddly, CRR surface impoundments that are not able to install a composite liner system would not be able to
make this demonstration and would have to cl ose within 5 years of the effective date of the rules. 40 C.F.R. § 257.71(g). EPA provides no explanation as to why it will grant an extension under 40 C.F.R. § 257.65 and not under 40 C.F.R. § 257.71.] While existing units may be allowed 5 years to contin ue operating, the period of time by which closure must be completed once they cease operating

– i.e., stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially surface impoundments. The proposal provides that an owne r/operator must being closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs [Footnote 4: There is an exception to this requirement allowing closure to begin no later than 1 year f rom the last receipt of CCRs if the unit has remaining capacity and there is a reasonable likelihood that the unit will receive additional CCRs. Proposed at § 257.100(j).] and must complete closure within 180 days following the start of closure activities. 40 C.F.R. § 257.100(k). This means, for example, that a CCR surface impoundment that is still operating on the effective date of the rules, but subsequently ceases receiving CCRs after the effective date of the rules, has only 210 days to complete closure after the final receipt of CCRs.

Given the number and size of the disposal units SIPC operates, a significant number of units will not be able to complete closure within this 210 day time frame. First, because a large number of
sites will have to be clo sed during roughly the same time frame, SIPC does not expect to be able to obtain the personnel and equipment necessary to close multiple sites at once, especially since other companies will need to obtain the same resources at the same time. Furthermore, even if sufficient manpower/equipment is available, SIPC will simply be unable to close its disposal units in the timeframes EPA proposes.

For instance, surface impoundments would be required to close by removing liquid wastes or solidifying remaining wa stes. 40 C.F.R. § 257.100(c)(1). For many of the CCR surface impoundments SIPC operates dewatering the impoundment alone is expected to take several years to complete, making it physically impossible to comply with EPA’s closure time frame.

Given the exp ected length of time necessary to dewater impoundments, and the need for many of these units to be closed when the rules come into effect, SIPC recommends that EPA not establish a specific time frame for closure. Instead, EPA should require utilities to cl ose CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional engineer or hydrologist. The establishment of a closure plan, with set schedules, is the most effective m ethod to account for the many variables associated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly
unrealistic closure time schedules

.

EPA Response : In regard to time frames to initiate and complete closure of a CCR unit,

EPA addresses these issues in Unit VI. M .4 of the preamble.17

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06533

- 10 Organization 1 : Empire District Electric Company (4K) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: Closure of existing surface impoundments within 5 years of the effective date under a Subtitle D or D prime program may be impossible. Initial investigations indicate that just the dewatering of some surface impoundments may take 5 years. Empire District recommends that EPA perform additional investigation into this practical implementation issue and either provide technical procedures that accelerate the dewatering of these surface impoundments or provide closure extension alternatives to allow adequate time to address the dewatering issue.

EPA Response : EPA responds to this comment in Un it VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 25 Organization 1 : SCANA Corporation (4L) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.2

Comment Excerpt Text: Compliance Time Frame (§ 257.65 (a) and § 257.71 (a))

The compliance deadline required by this rule will be unachievable in many circumstances. The compliance deadline does not consider the need for an owner to implement an alternative to the existing CC R surface impoundment or existing CCR landfill. As an example, many owners will be converting facilities to dry handling of fly ash in order to phase out existing CCR surface impoundments. Owners will be required to site, design, permit, and construct new CCR landfills to provide replacement disposal capacity. The time frame required to site, design, permit, and construct a landfill in today’s regulatory environment is at least 5 to 10 years.

In addition, due to the size of many existing CCR surface impou ndments, the actual closure after a replacement facility is operating will take several years. While some owners believe capping existing CCR surface impoundments in place will be an adequate closure, there will definitely be
circumstances where removal an d decontamination of existing CCR surface impoundments for disposal in new CCR landfills will be the only prudent closure option. As an example, an existing 100

- acre CCR surface impoundment with 15 feet of ash equates to 2.4 million cubic yards of ash. An aggressive excavation project moving 5,000 cubic yards of ash per day will require at least 18 months. Generally, the closure project will take 2 years or more in addition to the 5 to 10 years required to establish (design, permit, and construct) an altern ative facility to
handle the material.

The EPA should adopt a phased approach for compliance whereby ceasing operations in an existing CCR surface impoundment would have a regulatory deadline of 7 years. Then closure of existing CCR surface impoundment s hould be completed within 3 years. An extension clause should be added for consideration of very large existing CCR surface impoundments such as18

those greater than 75 acres. In addition, the EPA should add a “force majeure” clause covering events beyond th e control of the owner and specifically including delays caused by court order (i.e. appeals of permits issued by state agencies causing judgments in court). An example
follows:

“An extension shall be granted for any scheduled activity delayed by an even t of force majeure which shall mean any event arising from causes beyond the control of the owner that causes a delay in or prevents the performance of any of the conditions under this rule including but not limited to: acts of God, fire, war, insurrection , civil disturbance, explosion; adverse weather conditions that could not be reasonably anticipated causing unusual delay in transportation and/or field work activities; restraint by court order or order of public authority; inability to obtain, after exer cise of reasonable diligence and timely submittal of all applicable applications, any necessary authorizations, approvals, permits, or licenses due to action or inaction of any governmental agency or authority; and delays caused by compliance with applicab le statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of reasonable diligence by representatives of the owner.

Events which are not force majeure include by example, but are not limited to, unantici pated or increased costs of performance, changed economic circumstances, normal precipitation events, or failure by the owner to exercise due diligence in obtaining governmental permits or performing any other requirement of this rule or any procedure nece ssary to provide performance pursuant to the provisions of this rule. Any written notice of extension shall be granted at the discretion of the state regulatory authority .”

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In

ad dition, the Agency considered the excavation project data provided by the commenter in developing the timeframes for closure.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 30 Organization 1 : SCANA Corporation (4L) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: Regarding the deadline for completion of closure activities, the EPA should incorporate a tiered approach based on the size (in acres) of an existing CCR landfill or existing CCR surface impoundment. In the c ase of existing CCR surface impoundments, the completion time for closure activities should not begin until after operations have ceased and the site has had adequate time to dewater. For example:

Closure Area: <20 acres; Completion Time: 12 months
Closu re Area: 20 to 50 acres; Completion Time: 24 months Closure Area: 50 to 75 acres; Completion Time: 36 months Closure Area: >75 acres; Completion Time: Site specific19

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 11 Organization 1 : Dominion Resources Services, Inc. (4M) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: EPA should not establish a specific timeframe for closure of CCR surface i mpoundments.

As previously stated, Dominion supports the D Prime option, which allows for surface impoundments to continue to operate for the remainder of their useful life without having to install composite liners; however, if the Subtitle D option is approved as proposed, we believe that the timeframe allowed for the closure of CCR surface impoundments and landfills that arc unable to meet the proposed design and operating standards is unrealistic. The accelerated
timeframes must be extended to more re alistically reflect the siting, permitting, design, construction, and operational challenges for closing these units. For example, one of our ash ponds is located adjacent to a protected species habitat and is subject to time of year restrictions
for const ruction activities which will extend the closure timeframe. Additionally, closure of these facilities cannot occur until an alternate/replacement disposal facility and handling system arc in place and operational. Such replacement facilities can take a num ber of years to develop and permit.

The proposed Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or performance criteria, such as not being located in unstable areas or having engineerin g measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if already located in unstable areas. 75 Fed. Reg.
at 35241

- 43 (proposed 40 C.F.R. § 257.60

- § 257.65). In addition, within five years of the effective date of the Subtitle D rules, existing surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. Id. at 35244 (proposed 40 C.F.R. § 257.7 1(g)) . Because these obligatio ns may be impossible to fulfill and would impose significant operational costs on owners/operators, many surface impoundments may have to close as a result of these requirements. Likewise, a number of landfills may also need to be closed if they are unable to comply with the "unstable areas" location restriction, pursuant to the Subtitle D closure framework. The proposed timetables for actually closing these landfills and surface impoundments, however, arc unrealistic and many facilities will be physically incapable of meeting these schedules. Based on Dominion's past experience, siting, permitting, designing, and constructing a new facility for CCR disposal can

t ake up to 10 years to complete.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 12 Organization 1 : Dominion Resources Services, Inc. (4M)20

Commenter Type: Electric Utility Co mpany Other Sections: 4.6.1.1 4.6.1.4

Comment Excerpt Text: While existing units may be allowed five years to continue operating, the period of time by which closure must be completed once they cease operating. or stop receiving CCRs, is simply too short for the majority of CCR disposal units, especially surface im poundments. The proposal provides that an owner/operator must begin closure activities within 30 days after the date on which the CCR landfill or impoundment receives the final transfer of CCRs, and must complete closure within 180 days following the start of closure activities. Id. at 35253 (proposed 40 C.F.R. § 257.1 OO(k». This means, for example, that a CCR impoundment that is still operating on the effective date or the rules but subsequently ceases receiving CCRs alter the effective date or the
rules has only 210 days to complete closure aner the final receipt of CCRs. Based on a preliminary evaluation that Dominion has conducted to assess the surface impoundments at their facilities that would potentially be affected under the proposed Subtitle D opti on, most of the units would not be able to complete closure within this 210

- day timeframe and in fact, most would require greater than five years to complete closure. As stated previously, existing disposal facilities cannot close until a replacement dispo sal facility is available and ready to accept CCRs, and it can take up to 10 years to site, permit, design, and construct a new CCR disposal facility and supporting handling system. Additionally, it is not likely that sufficient disposal capacity
would be available commercially due to the significant increase in material that will require disposal as a result of the new rule and the closure of many utility CCR facilities.

Additionally, because a large number of sites would have to be closed during roughly the same timeframe, utilities would have to compete with one another to obtain the personnel and equipment necessary to close multiple sites during the same timeframe. Furthermore, even if sufficient manpower/equipment was available, owners/operators woul d simply be unable to close the disposal facilities in the timeframes proposed by EPA, due to the sizc and other constraints of certain CCR impoundments and landfills. For example, surface impoundments would be required to close by removing liquid wastes o r solidifying remaining wastes. ld. at 35252 (proposed 40 C.F.R. § 257.1 OO(e)( I)). For very small surface impoundments, it is possible that closure could be completed within the proposed time frame; for many surface impoundments, however, dewatering the impoundment alone can take years to complete, making it physically impossible to comply with EI)A's closure timeframe. As EPA acknowledges, its closure timeframes were borrowed directly from the existing closure timeframes for municipal solid
waste landfil ls (MSWLFs) under 40 C.F.R. Part 258. ld. at 35209. While application of the MSWLFs' standards to CCR disposal facilities is appropriate in many respects, this is not one of those instances since MSWLFs obviously do not contain the volume of water containe d in CCR impoundments.

Furthermore, landfills typically close each component cell when the cell reaches its disposal capacity so that many cells have already been "closed" when the landfill begins final c1osurc. Conversely, surface impoundments must be e ntirely dewatered before closure can even begin for any portion of the impoundment. While EPA's proposed closure timeframe may be appropriate for some landfill types, it is entirely inappropriate to apply this same timeframe to CCR surface impoundments. As stated previously, Dominion's preliminary studies conducted to determine21

requirements and estimated schedules for managing CCR surface impoundments that would be subject to the proposed Subtitle D option concluded that for surface impoundments with large volumes of water, the 210

- day requirement would be impossible to meet for several reasons, including the need to allow sufficient time to ensure complete dewatering of the impoundment, assure the stability of the dewatered CCRs, and uniformly construct the slope of the final cover materials. In fact, it is estimated that dewatering operations would require a m inimum of24 months to complete.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 0 6833

- 13 Organization 1 : Dominion Resources Services, Inc. (4M) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: As stated previously, Dominion supports the D Prime option, which allows for surface impoundments to cont inue operating for the remainder of their useful life. However, in instances where impoundments reach the end of their useful life or arc required to c10sc under the D Prime option, or if EPA selects the proposed Subtitle D option (which ostensibly will re quire closure of most impoundments), Dominion recommends that EPA not establish a specific timeframe for closure. Instead, we urge EPA to allow utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional engineer (PE). The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associated with the closure of these units and is the approach comm only used by utilities. A closure plan would also provide EPA and the public with certainty that closure would occur in a stepwise and timely manner, without requiring facilities to comply with unrealistic and impractical closure schedules.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 14 Organization 1 : Dominion Resources Services, Inc. (4M) Commenter Type: Electric Utility Company

Comment Excerpt Text: On a related note, EPA docs not consider in its Subtitle D proposal those state programs that provide a means to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. After these impoundments are appropriately converted, EPA should spec ifically identify these facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoundments, including potential closure requirement s. This approach will authorize the continued operation of these existing CCR landfills and regulate these units pursuant to the appropriate applicable standards. Additionally, re

- use of the surface impoundment areas for a landfill rather than construction of a new "Greenfield" site is a significant environmental advantage. This would also help utilities to avoid or reduce costs for22

future acquisition of land for the construction of new landfills, infrastructure development, and
environmental remediation and/or mitigation.

In the event that we are required to close surface impoundments, we would like the ability to reuse (either for a CCR landfill or supporting infrastructure) the property where the surface impoundment was previously located without being subject to CCR surface im poundment closure requirements.

EPA Response : EPA responds to this comment in Comment Response Document Volume

11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 10 Organization 1 : American Electric Power (AEP) (4N) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: If USEPA goes ahead with required phase

- out of ash ponds, the compliance schedule must be practicable.

The Subtitle D option would require that existing surface impoundments that cannot demonstrate that the impoundment is constructed in a stable area must close within five years after the effective date of the rule with an extension of two years if it can b e demonstrated that there is no available alternative disposal capacity and there is no immediate threat to human health and the environment (Proposed Rule 257.65) Further, under Subtitle D, those impoundments that are located in a stable area would be req uired to be dredged and have installed a composite liner and leachate collection system within five years or be closed [Proposed Rule 25771 (g)] with apparently no extension available Then, proposed rule 257.100 (j )&(k) would require that
closure activitie s begin within 30 days after the date on which the surface impoundment receives the final receipt of CCRs and that closure be completed within 180 days following the beginning of closure (210 days total to complete closure). It should be pointed out that a t some locations, it will take at least four years from the time the new CCR rule becomes effective to accomplish the

wet

- to

- dry conversion and to accomplish the switch to dry, which means that wet ashes would be
receive d as late as the end of Year 4.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 12 Organization 1 : American Electric Power (AEP) (4N)
Commenter Type: Electric Utility Company
Other Sections: 3.7.4

Comment Excerpt Text: Not only is the five to seven year total closure time frame troublesome, the requirement to close23

a surface impoundment within 210 days of the cessation of CCR disposal (Subtitle D) or within two years of cessation of CCR disposal (Subtitle C) will be impossible in many situations.. Closure may be accomplished either through CCR removal and decontamination of all affected areas or by closure leaving the CCRs in place.. For large su rface impoundments, it is not practicable to accomplish closure through CCR removal To close with the CCRs in place, free liquids must be removed, the remaining CCRs must be stabilized to a bearing capacity sufficient to support the final cover without set tlement concerns, and the final cover placed.

It is not uncommon for AEP ash impoundments to have surface areas of 100 to 300 acres and a length of 5,000 feet or more.. It can take several years to remove liquids and stabilize a surface impoundment to th e point where a final cover can be placed without settlement concerns Such procedures could include the installation of wick drains for liquid removal and/ or the preloading of the ash with 20 to 100 ft of soil/rock material over several years to properly consolidate the area for final cover placement The cost to dewater such large areas is estimated at about $100,000 per acre. The cover system must consist of a 1.5 foot clay layer and 6 inches of topsoil and be sloped a minimum of 2% to 5% for positive sur face drainage. To construct a cover system that provides positive drainage over such large surface areas would require, in some cases, 8

- 10 million cubic yards of fill. Based on a production rate of 10,000 cubic yards of fill per day, it
would take 800 wor

king days to construct the fill. With earthwork construction limited to about seven months per year, it could take four to five years to complete the fill. Additionally, the production of millions of cubic yards of such fill from natural sources is not wit hout its own environmental impacts So, to require surface impoundments to close within 210 days (Subtitle D), or even two years (Subtitle C), from the date of receipt of the final CCRs is simply not

p ossible for large impoundments.

EPA Response : In regar d to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble. In addition, the Agency considered the earthwork project example provided by the commenter in developing the timeframes for

closure.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06852

- 15 Organization 1 : Green Delaware (4O) Commenter Type: Advocacy Group
Other Sections: 3.7.4

Comment Excerpt Text: Requirements for Closure and Post

- Closure Care

These are more stringent under the Subtitle C option

EPA Response : EPA thanks the commenter for its comments

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 29 Organization 1 : Avista Corp. (4P)24

Commenter Type: Electric Utility Company
Other Sections: 4.6.1.2

Comment Excerpt Text: Compliance With EPA’s Proposed Timeframe For Closure Of Surface Impoundments And Landfills Is Impossible A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable t o meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surface impoundments operating in an environmentally sound manner could continue to operate, there will undoubtedly be a significant number of impoundment s that will have to close. Therefore, a more realistic and achievable closure process is necessary under this option.

The Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or performance cr iteria ( e.g. , not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). 75 Fed. Reg. at 35241

- 43 (proposed 40 C. F.R. § 257.60

- § 257.65). Further, within five years of the effective date of the Subtitle D rules, existing surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. Id . at 35244 (p r oposed 40 C.F.R. § 257.71(g)).

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 30 Organization 1 : Avista Corp. (4P) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: Because these obligations may be impossible to fulfill and would impose significant operational costs on owners/operators, Avista agrees with EPA that “many surf ace impoundments may close as a result of these requirements.” Id . at 35199. Likewise, a number of landfills may also close if they are unable to comply with the “unstable areas” location restriction. Many of these disposal units will need to close pursuant to the Subtitle D closure framework. The proposed timetables
fo r actually closing these landfills and surface impoundments, however, are totally unrealistic and many facilities will be physically incapable of meeting these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within five years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment. Id. at 35243 (proposed 40 C.F.R. § 257.65) [Footnote 2: CCR surface impoundments that were not able to install a composite liner system would not be able to make this demonstration and would have to close25

within 5 years of the effective date of the rules. Id . at 35244 (proposed 40 C.F.R. § 257.71(g)).]. While existing units may be allowed five years to continue operating, the period of time by which closure must be completed once they cease operating

– i.e. , stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially surface impoundments. The proposal provides that an owner/operator must initiate closure act ivities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs
and must complete closure within 180 days following the start of closure activities [Footnote 3: There is an exception to this requireme nt allowing closure to begin no later than one year from the last receipt of CCRs if the unit has remaining capacity and there is a reasonable likelihood
that the unit will receive additional CCRs. Id. at 35252 (proposed § 257.100(j)).]. Id . at 35253 (prop osed 40 C.F.R. § 257.100(k)). This means, for example, that a CCR impoundment that is still operating on the effective date of the rules but subsequently ceases receiving CCRs after the effective date of the rules has only 210 days to complete closure afte r the final receipt of CCRs. This is an unreasonably short time frame for a surface impoundment

– which can often take years to de

- water before capping can be completed. For example, the closure of the Stage One Evaporation Pond for Units 1 and 2 at Colstr ip took over 8 years to complete the agency approval and capping process.

As EPA acknowledges, its closure timeframes were borrowed directly from the existing closure
timeframes for MSWLFs under 40 C.F.R. Part 258. Id. at 35209. While application of the MSWLFs standards to CCR disposal units is appropriate in many respects, this is not one of those instances. The CCR disposal units often are much larger than MSWLFs, and MSWLFs obviously do not contain the volume of water contained in CCR impoundments.

F urthermore, landfills typically close each component cell when the cell reaches its disposal capacity so that many cells have already been “closed” when the landfill begins final closure. Most surface impoundments, on the other hand, must be, to some exten t, dewatered before closure can even begin for any portion of the impoundment. While EPA’s proposed closure timeframe may be appropriate for some landfill types, it is entirely inappropriate to apply this same timeframe to surface impoundments [Footnote 5: Because EPA includes a wide variety of landfill types which extends beyond those below

- grade

- units that are similar to MSWLFs, these timeframes may be impossible to meet for some units classified as. landfills in the proposal ( e.g. , structural fills that may be located above grade or have other physical characteristics different from typical MSWLFs).].

Given the disparity in the sizes of these units, the length of time necessary to dewater impoundments, and the need for many of these units to be closed w hen the rules come into effect, Avista strongly recommends that EPA not establish a specific timeframe for closure. Instead, we urge EPA to require utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state , or developed and certified by a registered professional. The establishment of a closure plan, with set schedules, is the most effective method to account for the many site

- specific variables associated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure schedules. EPA has made no effor t in its Subtitle D proposal to consider those state programs that provide a means to convert CCR26

surface impoundments to landfills through dewatering and other appropriate requirements. After these impoundments are appropriately converted, EPA should spec ifically identify these facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoundments, including potential closure requirement s. This will authorize the continued operation of these existing CCR landfills and regulate these units pursuant to the appropriate applicable standards and not require plants to acquire land for the constr uction of new landfills.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble. EPA responds to this comment on “overfills” in Comment Response Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 20 Organization 1 : Constellation Energy (4Q) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text:
Attachment B Specific Comments on the Subtitle D Proposal Subtitle D Proposed Regulation Comments
General Comments
As was done for the municipal solid water Subtitle D landfill rules, there should be an implementation schedule that allows for new landfills and cells to be designed or redesigned to comply with the new regulations. The regulations adopted by the states and appr oved by EPA could take several months to a year. The five

- year schedule under the proposed regulations for conversion or closure of existing landfills and impoundments does not address the type of
construction used for some facilities. Facilities that have constructed airspace that would last beyond the proposed five

- year window should be allowed to demonstrate that continued operation would not cause environmental hazards greater than the proposed rules.

The implementation schedule for impoundments shoul d be specific to the type of impoundment. For example an excavated basin with no embankment stability concerns could be closed or redesigned in a shorter schedule than a basin which is created by construction of a dam across a valley. Many basins will requ ire time to drain and consolidate in a controlled manner to allow access for construction activities associated with conversion to a landfill or closure. Forced rapid closure could result in increase post

- closure maintenance and excess construction costs

a ssociated with earthwork on materials with marginal bearing capacity. Conversion schedules should be created by the owner and registered professional engineer based on sound design and construction practices.

Inspection schedules for basins should be var iable and approved by the states. This will allow for the variability of the types of basins. Again, basins that are created by excavation and have no embankments will not need inspections at the same schedule as those with embankments and large drainage a reas

.27

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 24 Organization 1 : Great River Energy (4R) Commenter Type: Electric Utility Company

Comment Excerpt Text: The time period for closure of impoundments once they stop receiving CCRs is far too short. It may not be possible to begin closure in 30 days after a facility ceases receiving CCRs due to weather concerns ( winter, rain seasons, etc.). To complete closure within 180 days may not be feasible either. For larger impoundments it may take years to dewater the CCRs to the point they can support closure activities. The proposal should acknowledge the schedule provid ed by a professional engineer in a closure plan.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 11 Organization 1 : Minnesota Power (ALLETE) (4S) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: EPA Applies Subpart D, Non

- hazardous Waste Provisions for New Ash Management. EPA has proposed two distinct paths for Federal Management of CCRs: treatment of ash as a special

waste under Subpart C, RCRA Hazardous Waste regulations vs. treatment of ash as a non

hazardous waste under RCRA Subpart D. MP notes that the Minnesota regulations and NPDES permit requirements addressing ash handling, storage and impoundments already meet or ex ceed existing Federal Subpart D requirements, including requirements for top seal of ash storage areas to meet MSW standards. MP supports continued regulation of coal ash as a nonhazardous waste, but is concerned that the Subpart D regulations, as proposed by EPA, would force redesign or closure of existing ash storage facilities within five years of enactment, rather than allowing existing, well managed facilities to first expend their operating life, as is provided for under EPA’s D Prime option. Forced c losure of or redesign of wet ash handling systems within five years of rule finalization increases compliance costs without delivering justifying environmental benefits in instances where existing regulations already provide for environmental protections. EPA should also clarify that existing facilities will continue to be regulated under existing state requirements in the proposed five year transition period to Subpart D regulation so that provisions can be made to do an orderly transition to compliance wi th any new regulatory provisions. EPA should also clarify that inactive ash storage areas are not targeted for additional
cl osure measures under Subpart D.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresse s these issues in Unit VI. M .4 of the preamble , including for idled units

. In addition, Unit VI.L of the preamble addresses inactive units.28

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 11 Organization 1 : Massachusetts Department of Environmental Protection (4T) Commenter Type: State Government
Other Sections: 10.2.2.1 10.2.2.2 4.4.5.1 4.4.7 4.2.2 4.2.4 4.4.9.1

Comment Excerpt Text: MassDEP recommends that the final EPA regulations include the following critical provisions:
• National minimum de sign and performance standards for disposal in landfills that include requirements for a composite liner, leachate collection, groundwater monitoring and final closure

• Regulation of beneficial uses of CCR, including potential exemption from further reg ulation for certain encapsulated uses of CCR in cement products or similar encapsulated uses in products

• State or federal compliance assurance for beneficial uses to ensure that such uses will be protective of public health and the environment

• Fina ncial assurance for landfill closure and post

- closure monitoring and maintenance

• Allowance for states to be more stringent than the final EPA rules

• Clear enforcement authority and permitting authority for states

EPA Response : Unit VI. M of the preamble addresses closure

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 65 Organization 1 : Prairie State Generating Company, LLC (PSGC) (4U) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text: Closure (40 C.F.R. §§ 257 .65, 257.71 and 257.100) The timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards is too short. Section 257.60 would require existing landfills and surface impoundments to m eet certain location restrictions or performance criteria (e.g., not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in
unstab le areas). Further, Section 257.71 requires within five years of the effective date of the Subtitle D rules, existing surface impoundments to be dredged and have installed a composite liner and leachate collection system, or close. Because these obligation s may be impossible to meet and would otherwise impose significant operational costs on PSGC, PSGC agrees with EPA that "many surface impoundments may close as a result of these requirements." 75 Fed Reg. at 35199. Likewise, a number of landfills may also close if they are unable to comply with the "unstable areas" location restriction. The proposed time tables for actually closing these landfills and surface impoundments, however, is totally unrealistic.29

In particular, EPA proposes to require disposal uni ts that cannot meet the location restrictions or associated operating standards to close within 5 years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demo nstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment. [Footnote 2: Oddly, CCR surface impoundments that are not able to install a composite liner system would not be able to make this demonstration and would have to close within 5 years of the effective date of the rules. 40 C.F.R. § 257.71(g). EPA provides no explanation as to why it will grant an extension under 40 C.F.R. § 257.65 and not under 40 C.F.R. § 257.71.] While existing units may be allowed 5 years to continue operating, the period of time' by which closure must be completed once they cease operating

- i.e., stop receiving CCRs

- is simply too short for the vast majority of CCR disposal units, especially CC R surface impoundments. The proposal provides that an owner/operator must begin closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs [Footnote 3: There is an exception to this re quirement allowing closure to begin no later than 1 year from the last receipt of CCRs if the unit has remaining capacity and there is a reasonable likelihood that the unit will receive additional CCRs. Proposed at § 257.100(j).] and must complete closure within 180 days following the start of closure activities. 40 C.F.R. § 257.100(k). This means, for example, that a CCR surface impoundment that is still operating on the effective date of the rules, but subsequently ceases receiving CCRs after the effectiv e date of the rules, has only 210 days to complete closure after the final receipt of CCRs.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 67 Organization 1 : Prairie State Generating Company, LLC (PSGC) (4U) Commenter Type: Electric Utility Company

Comment Excerpt Text: Given the expected length of time necessary to dewater impoundments, and the need for many of

t hese units to be closed when the rules come into effect, PSGC recommends that EPA not establish a specific time frame for closure. Instead, EPA should require utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional engineer or hydrologist. The establishment of a closure plan, with set schedules, is the most effective method to account for the many

variables associated with the closure of these units and is the approach commonly used by occur ill a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic

closure time schedules.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.30

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 42 Organization 1 : Arizona Department of Environmental Quality (ADEQ) (4V) Commenter Type: State Government
Other Sections: 4.7

Comment Excerpt Text: Pg. 35252, Section 257.100 Closure criteria: Paragraph (d) of this se ction prescribes one cover design option and paragraph (e) authorizes an alternative final cover design. Therefore, Arizona requests that paragraph (c)(v) be modified as follows (modification in italics):

(v) have a final cover system that meets the requi rements of subsection (d) or (e)

.

EPA Response : The Agency agrees with the commenter, though EPA has reorganized the final regulatory text for greater clarity. For additional information, see Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10017

- 7 Organization 1 : Salt River Project (SRP) (4W) Commenter Type: Electric Utility Company
Other Sections: 4.5.1 4.6.1.4 4.5

Comment Excerpt Text: Another important modification to the Subtitle D Prime and main Subtitle D options would be an
extension of the timeframes for closure. Such an extension of time would ensure that CCR surface impoundments that must be closed are closed in an environmentally sound manner. SRP recommends that closure of CCR impoundments, if necessa ry, be conducted under a state approved program within a reasonable timeframe.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 12 Organization 1 : Consumers Energy Company (4X) Commenter Type: Electric Utility Company

Comment Excerpt Text: If the D Prime option is not adopted, the timeframe in the proposed rules for closing surface impoundments and landfills is not technically achievable. These impoundments and landfills may be hundreds of acres in extent and closure cannot be accomplished in the time provided, especially in northern states where cold weather limits the construction season. Due to the water holding capacity of many CCRs, the dewatering process alone may exceed th e closure time specified in these proposed rules. Additionally, the closure of CCR landfills across the country in the limited timeframe provided may result in the shortage of materials and labor necessary for
closure. The timeframe for the closure of surf ace impoundments must be extended to
accommodate these considerations.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.31

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 48 Organization 1 : Utility Solid Waste Activities Group (USWAG) et al. (4Y) Commenter Type: Trade Association
Other Sections: 4.6.1.4 4.6.1.5

Comment Excerpt Text: While USWAG supports the Subtitle D Prime option, and believes that it can be administered through qualified state programs with back

- up EPA enforcement authority in under

- performing states, there are fundamental flaws with elements of the proposed regulations in need of correction. Key problems include: unrealistically short closure timeframes for CCR disposal units; the unwarranted application of all loc ation restrictions to existing CCR surface impoundments; the inclusion of inappropriate constituents in the proposed groundwater monitoring program, the failure to allow for alternate liner systems, and an overly broad
definition of “CCR Landfill” that ina ppropriately includes all “large scale fill operations.” These
and other issues are discussed below.

A. Compliance With EPA’s Proposed Timeframe For Closure Of Surface Impoundments And Landfills Is Impossible

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surface impoundments operating
in an environmenta lly sound manner could continue to operate, there will undoubtedly be a significant number of impoundments that will have to close. Therefore, a more realistic and achievable closure process is necessary under this option.

The Subtitle D option would requ ire that existing landfills and surface impoundments meet certain location restrictions or performance criteria (e.g., not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). 75 Fed. Reg. at 35241

- 43 (proposed 40 C.F.R. § 257.60

- § 257.65). Further, within five years of the effective date of the Subtitle D rules, existing surface impoundments would be required to b e dredged and have installed a composite liner and leachate collection system, or close. Id. at 35244 (proposed 40 C.F.R. § 257.71(g)). Because these obligations may be impossible to fulfill and would impose significant operational costs on owners/operator s, USWAG agrees with EPA that “many surface impoundments may close as a result of these requirements.” Id. at 35199. Likewise, a number of landfills may also close if they are unable to comply with the “unstable areas” location restriction. Many of these d isposal units will need to close pursuant to the Subtitle D closure framework. The proposed timetables for actually closing these landfills and surface impoundments, however, is totally unrealistic and many facilities will be physically incapable of
meetin g these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within five years of the effective date of the finalized regulations, which may be extended by a n additional two years [Footnote 38: Even though the32

proposed regulatory text only provides this additional two years to disposal units located in unstable areas, EPA indicates in the proposal‘s preamble that this extension is intended to be applicable to all location restrictions applicable to existing CCR disposal units. Id. at 35202. ] if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human hea lth or the environment. Id. at 35243 (proposed 40 C.F.R. § 257.65). [Footnote 39: CCR surface impoundments that were not able to install a composite liner system would not be able to make this demonstration and would have to close within 5 years of the eff ective date of the rules. Id. At 35244 (proposed 40 C.F.R. § 257.71(g)).] While existing units may be allowed five years to continue operating, the period of time by which closure must be completed once they cease operating

– i.e., stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially surface impoundments. The proposal provides that an owner/operator must begin closure activities within 30 days after the date on which the CCR landfill or impoundment receives the
k nown final receipt of CCRs and must complete closure within 180 days following the start of closure activities. [Footnote 40: There is an exception to this requirement allowing closure to begin no later than one year from the last receipt of CCRs if the un it has remaining capacity and there is a reasonable likelihood that the unit will receive additional CCRs. Id. at 35252 (proposed § 257.100(j)). ] Id. at 35253 (proposed 40 C.F.R. § 257.100(k)). This means, for example, that a CCR impoundment that is still operating on the effective date of the rules but subsequently ceases receiving CCRs after the effective date of the rules has only 210 days to complete closure after the final receipt of CCRs.

Given the number and size of the disposal units that utilitie s operate, a significant number of units will not be able to complete closure within this 210

- day timeframe. First, because a large number of sites will have to be closed during roughly the same timeframe, utilities will not be able to obtain the personnel and equipment necessary to close multiple sites, especially since other companies will need to obtain the same resources at the same time. Furthermore, even if sufficient manpower/equipment is available, some owners/operators will simply be unable to
clos e their disposal units in the timeframes EPA proposes, due to the size of certain CCR impoundments and landfills.

For instance, surface impoundments would be required to close by removing liquid wastes or solidifying remaining wastes. Id. at 35252 (propos ed 40 C.F.R. § 257.100(c)(1)). For very small surface impoundments, it is conceivable that an owner/operator could comply with this requirement within the proposed time frame; for many surface impoundments, however, dewatering the impoundment alone can tak e several years to complete, making it physically impossible to comply with EPA‘s closure timeframe. As EPA acknowledges, its closure timeframes were borrowed directly from the existing closure timeframes for MSWFLs under 40
C.F.R. Part 258. Id. at 35209. While application of the MSWLFs standards to CCR disposal units is appropriate in many respects, this is not one of those instances. The CCR disposal units often are larger than MSWLFs, and MSWLFs obviously do not contain the volume of water contained
in C CR impoundments.

Furthermore, landfills typically close each component cell when the cell reaches its disposal capacity so that many cells have already been “closed” when the landfill begins final closure. Surface impoundments, on the other hand, must be entirely dewatered before closure can even33

begin for any portion of the impoundment. While EPA‘s proposed closure timeframe may be appropriate for some landfill types,[Footnote 41: Because EPA includes a wide variety of landfill types, which extend beyond those below

- grade

- units that are similar to MSWLFs, these timeframes may be impossible to meet for some units classified as landfills in the proposal (e.g., structural fills that may be located above grade or have other physical characteristics different
f rom typical MSWLFs). ] it is inappropriate to apply this same timeframe to surface impoundments. In fact, a USWAG member recently obtained approval for a closure plan for a
343

- acre surface impoundment that provided for a twelve

- year closure period to ensu re adequate time to complete dewatering of the impoundment, assure the stability of the dewatered CCRs, and uniformly construct the slope of the final cover materials.

Additionally, 210 days may not be sufficient to acquire the materials needed to conduct and complete closure. For example, due to the significant volume of clay that is needed to cover an impoundment hundreds of acres in size (as well as the likelihood that other units may need to close in the same timeframe), there may be insufficient suppl y of clay and/or it may be impossible to transport the needed volume of clay to the site. Moreover, in some circumstances, states may not be able to provide final approval of a facility‘s closure plan before the end of the
210

- day closure time limit, putti ng facilities in automatic non

- compliance through no fault of their own, but due simply to limited state resources. There is an additional concern for northern tier states in that some closure work can only be conducted seasonally during the warm weather

m onths. Depending on the scope of the work and the project start date, it might not even be possible to complete the closure of a small facility in 210 days.

Given the disparity in the sizes of these units, the length of time necessary to dewater impoundme nts, and the need for many of these units to be closed when the rules come into effect, USWAG strongly recommends that EPA not establish a specific timeframe for closure. Instead, we urge EPA to require utilities to close CCR surface impoundments and landf ills consistent with a closure plan approved by a state, or developed and certified by a registered professional. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associated with the cl osure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure schedules.

On a related note, EPA has made no effort in its Subtitle D proposal to consider those state programs that provide a means to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. After th ese impoundments are appropriately converted, EPA should specifically identify these facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoundments, including potentially closure requirements. This will authorize the continued operation of these existing CCR landfills and regulate these units pursuant to the appropriate applicable standards and not require utilities to acquire lan d for the
construction of new landfills.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.34

Section 4.4.8.1

- EPA solicits comment on appropriateness of proposed c/pc requirements for CCR LFs (i.e., similar to existing MSWLF c/pc with modifications) (35207)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 4 Organization 1 : Ameren Corporation (4Z) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.2 4.6.1.4

Comment Excerpt Text: Ill. Closure Timeframe For Of Surface Impoundments And Landfills

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surf ace impoundments operating in an environmentally sound manner could continue to operate, there will undoubtedly be a significant number of impoundments that will have to close. Therefore, a more realistic and achievable closure process is necessary under t his option.

The Subtitle D option would require that existing landfills and surface impoundments meet
certain location restrictions or performance criteria (e.g., not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). 75 Fed. Reg. at 35241

- 43 (proposed 40 C.F.R. § 257.60

- § 257.65). Further, within five years of the effective date of the Subtitle D rules, existi ng surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. Id. At 35244 (proposed 40 C.F.R. § 257.71 (g)). Because these obligations may be impossible to fulfill and would impose

s ignificant operational costs on owners/operators, we agree with EPA that "many surface impoundments may close as a result of these requirements." Id. at 35199. Likewise, a number of landfills may also close if they are unable to comply with the "unstable a reas" location restriction. Many of these disposal units will need to close pursuant to the Subtitle D closure framework. The proposed timetable for actually closing these landfills and surface impoundments, however, is totally unrealistic and many facilit ies will be physically unable of meeting these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within five years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment . Id. at 35243 (proposed 40 C.F.R. § 257.65). While existing units may be allowed five years to continue operating, the period of time by which closure must be completed once they cease operating

- i.e., stop receiving CCRs

- is simply too short for the va st majority of CCR disposal units, especially surface impoundments. The proposal provides that an owner/operator must bring closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs a nd must complete closure within 180 days following the start of35

closure activities. Id. at 35253 (proposed 40 C.F.R. § 257.100(k)). This means, for example, that a CCR impoundment that is still operating on the effective date of the rules but subsequently ceases receiving CCRs after the effective date of the rules has only 210 days to complete closure after the final receipt of CCRs.

Given the number and size of the disposal units that utilities operate, a significant number of
units will not be able to c omplete closure within this 21 O

- day timeframe. First, because a large number of sites will have to be closed during roughly the same timeframe, utilities will not be able to obtain the personnel and equipment necessary to close multiple sites, especially since other companies will need to obtain the same resources at the same time. Second, even if sufficient manpower/equipment is available, some owners/operators will simply be unable to close their disposal units in the timeframes EPA proposes, due to the size of certain CCR impoundments and landfills.

For instance, surface impoundments would be required to close by removing liquid wastes or solidifying remaining wastes. Id. at 35252 (proposed 40 C.F.R. § 257.100(c)(1». For very small surface impoundments , it is conceivable that an owner/operator could comply with this requirement within the proposed time frame; for many surface impoundments, however, dewatering the impoundment alone can take several years to complete, making it physically impossible to co mply with EPA's closure timeframe. As EPA acknowledges, its closure timeframes were borrowed directly from the existing closure timeframes for MSWLFs under 40 C.F.R. Part 258. Id. at 35209. While application of the MSWLFs standards to CCR disposal units
is appropriate in many respects, this is not one of those instances. The CCR disposal units often are much larger than MSWLFs, and MSWLFs obviously do not contain the volume of water contained in CCR impoundments.

Furthermore, landfills typically close eac h component cell when the cell reaches its disposal capacity so that many cells have already been "closed" when the landfill begins final closure. Surface impoundments, on the other hand, must be entirely dewatered before closure can even begin for any por tion of the impoundment.

While EPA's proposed closure timeframe may be appropriate for some landfill types, it is entirely inappropriate to apply this same timeframe to surface impoundments. Additionally, 210 days may not be sufficient to acquire the mat erials needed to conduct and complete closure. For example, due to the significant volume of clay that is needed to cover an impoundment hundreds of acres in size (as well as the likelihood that other units may need to close in the same timeframe), there m ay be insufficient supply of clay and/or it may be impossible to transport the needed volume of clay to the site. Moreover, in some circumstances, states may not be able to provide final approval of a facility's closure plan before the end of the 210

- day c losure time limit, putting facilities in automatic non

- compliance through no fault of their own, but due simply to limited state resources.

Given the disparity in the sizes of these units, the length of time necessary to dewater impoundments, and the nee d for many of these units to be closed when the rules come into effect, Ameren strongly recommends that EPA not establish a specific timeframe for closure. Instead, we urge EPA to require utilities to close CCR surface impoundments and landfills36

consistent with a closure plan approved by a state, or developed and certified by a registered professional. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure schedu les.

On a related note, EPA has made no effort in its Subtitle D proposal to consider those state programs that provide a means to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. After these impoundmen ts are appropriately converted, EPA should specifically identify these facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoun dments, including closure requirements. This will allow the continued operation of these existing CCR landfills and regulate these units pursuant to the appropriate applicable standards and not require utilities to acquire land for the construction of

new landfills.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 152 Organization 1 : Kentucky Department for Environme ntal Protection (4AA) Commenter Type: State Government

Comment Excerpt Text: The Commonwealth agrees with the regulation of coal combustion residual landfills under the authority of RCRA Subtitle D, and with using the MSW landfill regulations as a template. However, since coal ash generally presents less threat than MSW, some of the restrictions should be less restrictive. Kentucky also urges EPA to adopt a rule similar to 40 CFD 239 for state permitting programs, in order to allow systematic prior review of engineering and geologic applications and variance requests.

EPA Response : In regard to the use of Part 258 for MSWLFs as a model for CCR units for closure requirements, EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 26 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) (4A) Commenter Type: State Government
Other Sections: 4.4.5 4.4.7.7 4.4.9.1

Comment Excerpt Text: CCR should be disposed into solid waste landfills meeting the RCRA Subtitle D design criteria. This includes groundwater monitoring, post

- closure monitoring and maintenance and financial
assurance unless the CCR can be used as structural fill. Where CCR ca n be used as structural fill, the fill area should have a synthetic liner, a leachate collection system and groundwater monitoring unless the area of the structural fill can be demonstrated to have geologic conditions37

that are protective of both groundwate r and surface water within a 1,000

- foot radius. Properties where CCR has been placed as structural fill should have notification placed in the deed.

EPA Response : The Agency agrees with the commenter that CCR landfills should be subject to closure requir ements, including post

- closure monitoring and maintenance requirements. Closure requirements are discussed in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 108 Organization 1 : Earthjustice et. al. (4D) Commenter Type: Advocacy G roup Other Sections: 4.4.8.2

Comment Excerpt Text: Is a final cover that has the following features adequate?

In general, yes, if the final cover includes a FML with a drainage layer. The cover should consist of a composite system. The amount of water infiltration through a composite cover is significantly less than the flow rates through a cover consisting entire ly of soil or entirely of geosynthetics.

i. permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10

- 5 cm/sec, whichever is less;

No, the permeability of the c over should be specified as being equal to, or less than the permeability of the bottom liner. In my opinion, this can only be achieved by using a cover system which includes a layer of top soil capable of supporting a vegetative cover, an infiltration lay er, a drainage layer, and an underlying composite liner consisting of a synthetic plastic component (FML) with an underlying 1 x 10

- 7 cm/sec layer of clay.

ii. an infiltration layer that contains a minimum of 18 inches of earthen material; and

Yes, suc h a layer should be included in a cover system to allow roots to extend beyond the 6 inches of top soil and to provide capacity to slow the drainage of the infiltrating water to the drain system..

iii. an erosion layer that contains a minimum of 6 inches of earthen material that is capable of sustaining native plant growth as a way to minimize erosion of the final cover.

Yes, such a layer must be included to support a vegetative cover. A good vegetative cover, preferably perennial grasses, is the best m ethod of reducing erosion.

iv. What if any slope requirements should be met?

The slope requirements will depend upon the nature of the cover design. For example, will the FML have a “ribbed” or roughed surface to minimize sliding of the soil placed on top of the38

FML or will it have a smooth surface? The final cover should have a minimum slope (typically 2 percent) to shed storm water falling on the cover and prevent ponding of water on the surface.

EPA Response : EPA responds to this comment in Unit V I. M

. 3 of the preamble. Regarding
issue “ iv .” in the comment with respect to slope requirements, the final rule includes a closure performance standard that requires the final cover system to be designed in a manner that will preclude the probability for f uture impoundment of water, sediment, or slurry.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 112 Organization 1 : Earthjustice et. al. (4D) Commenter Type: Advocacy Group
Other Sections: 4.4.8.2

Comment Excerpt Text: Are 40 CFR 265 interim status closure requirements/MSHA requirements adequate to protect health and the environment during emergencies?

No. In addition to the Interim Status Closure Requirements specified in 40 CFR 265, each CCR facility must prepare and file an Emergency Action Plan with the EPA and local civil defense officials. This Emergency Action Plan should provide contact information for all civil authorities and emergency first responders. The action plan should also provide detailed, step

- by

- ste p instructions on the emergency response actions to be implemented and a time

- table for completion of actions in the event of an emergency. The action plan should also provide a listing of all documentation to be collected or prepared as well as informatio n as to what is to be submitted and where. The emergency action plan for surface impoundments must also include maps indicating areas downgradient of the facility which will be inundated in the event of a breach of the surface impoundment. The maps must in clude modeled isopleths of inundation and be made available to emergency management agencies, so that they can be used to determine
what areas are to be evacuated and to determine the safest evacuation routes in the event of an actual or pending breach.

EPA Response : EAP requirements are addressed elsewhere in the preamble, rule, and comment response documents

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 64 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service
Commission of Wisconsin (WI PSC) (4BB) Commenter Type: State Government
Other Sections: 4.4.8.2

Comment Excerpt Text: The final cover design requirements on pp. 35208

– 35210 of the preamble, propose using the Part 258 MSW landfill design requirements as a general model. In general, we agree with this approach. Comments are:

The proposed ruled does not specifically include a geomembrane to make a composite cap, but39

includes a requirement that the cap permeability be no greater than that of the bottom liner
system. The proposed design may be sufficient for closure of an existing CCR landfill or impoundment that lacks a previously approved closure plan and design.

The requirement that the cap permeability be no greater than that of the bottom liner system

seems to mean that a new landfill or impoundment would have to have a composite cap, including clay soil and geomembrane. This is compatible with current Wisconsin regulations MSW landfill regulations, which require a composite liner and composite capping layer. Th e final rule should be specific about this issue.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 66 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) (4BB) Commenter Type: State Government
Other Sections: 4.4.8.2

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

EPA Response : EPA respon ds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 86 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) (4BB) Commenter Type: State Government
Other Sections: 3.7.4

Comment Excerpt Text: In WDNR’s experience, installation of a geo

- membrane cap is an effective method to reduce groundwater contaminant levels by reducing or eliminating water infiltration through the coal ash waste. Minimum design standards for CCR disposal sites should focus as much on the final
cover system as it does on the liner systems.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.40

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 16
Commenter 1 : Anonymous (4CC) Commenter Type: Anonymous
Other Sections: 4.4.8.2 Comment Excerpt Text:
Closure

40 CFR 257.100 Closure Criteria

Subsection 257.100(g) should be revised to include specific requirements for slope stability. Subsection 257.100(a) does inc lude a general requirement that the closure plan include provisions for major slope stability, but subsection 257.100(g), which addresses the requirements for the content of closure plans, should include more specific language.

EPA Response : EPA responds to this comment in Unit VI. M

. 1 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 2
Commenter 1 : Anonymous (4CC) Commenter Type: Anonymous

Comment Excerpt Text: 40 CFR 257.40 Disposal standards for owners/operators of CCR landfills and CCR surface impoundments

We recommend that EPA include language in the rule clearly stating that owners of existing landfills and surface impoundments that complete closure prior to the effective date of the rules would not be subject to the new requirements. Suggested language:

“Owners/operators of CCR landfills and surface impoundments that cease accepting S001 waste and complete closure in accordance with applicable state standards prior to the effective date of this regulation will not be subject to the r equirements of part 257 Subpart D.”

EPA Response : EPA addresses rule applicability issues in the preamble to the final rule and comment response document Volume 3.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 31 Organization 1 : West Virginia Department o f Environmental Protection (WVDEP) (4DD) Commenter Type: State Government
Other Sections: 4.4.8.2

Comment Excerpt Text: Section 257.100(j) states that CCR landfills and surface impoundments must begin closure activities no later than 30 days after the date on which the CCR landfill or surface impoundment receives the known final receipt of CCR, or if the CCR landfill or sur face impoundment contains41

remaining capacity, no later than one year after the most recent receipt of CCRs. This section appears to require commencement of landfill closure within one year after the most recent receipt of CCRs. If this assumption is correc t, this section is inconsistent with the remainder of the proposed rule as landfill closure is not referenced elsewhere. Existing CCR landfills must be able to continue to operate until remaining capacity is exhausted.

To allow for inclement weather cond itions, the time period for closure commencement should be extended to 180 days. Also, this section requires that closure activities be completed within 180 days following the beginning of closure activities. While this time period may be sufficient for
la ndfill closure, it is insufficient for impoundment closure.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 7 Organization 1 : Tri

- State Generation & Transmission (4EE)
Commenter Type: Electric Utility Company

Other Sections: 4.4.8.2

Comment Excerpt Text: A. Compliance With EPA's Proposed Timeframe For Closure Of Surface Impoundments And
Landfills Is Unrealistic and Unachievable A significant flaw in the Subtitle D proposal is t he unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surface impoundments operating in an environmentally s ound manner could continue to operate, there will undoubtedly be a significant number of impoundments that will have to close due to location restrictions and/or performance criteria. Therefore, a more realistic and achievable closure process is necessary under this option.

The Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or performance criteria ( e.g. , not be located in unstable areas or have engineering measures incorporated into the d esign to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). Further, within five years of the effective date of the Subtitle D rules, existing surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. Also, a number of landfills may close if they are unable to comply with the unstable areas location restriction. Many of these disposal units will need to close pursuant to the Sub title D closure framework. The proposed time table for closing these landfills and surface impoundments is unrealistic and many facilities will be physically incapable of meeting these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within 5 years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstratio n that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment. While existing units may be42

allowed 5 years to continue operating, the period of time by which closure must be completed once they cease operating

– i.e. , stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially surface impoundments. The proposal provides that an owner/operator must begin closure activities within 30 days after the d ate on which the CCR landfill or impoundment receives the known final receipt of CCRs and must complete closure within 180 days following the start of closure activities. This means, for example, that a CCR impoundment that is still operating on the effect ive date of the rules, but subsequently ceases receiving CCRs after the effective date of the rules, has only 210 days to complete closure after the final receipt of CCRs.

Given the number and size of the disposal units that Tri

- State G&T operates, we wi ll not be able to complete closure within this 210 day time frame. Tri

- State G&T questions EPAs wisdom in proposing this requirement. Tri

- State also questions where CCRs may be placed when the 210 day timeframe has passed. In Tri

- State’s experience, it tak es at least 4

– 5 years to site a new facility. Because a large number of sites will have to be closed during roughly the same time frame, Tri

- State G&T will not be able to obtain the personnel and equipment necessary to close multiple sites, especially si nce other companies will need to obtain the same resources at the same time. Furthermore, even if sufficient manpower/equipment is available, Tri

- State G&T will simply be unable to close their disposal units in the timeframes EPA proposes, due to the size of
certain CCR landfills.

Given the wide variety of unit size, the length of time necessary to dewater impoundments, and the need for many of these units to be closed when the rules come into effect, Tri

- State G&T recommends that EPA not establish a spec ific time frame for closure. Instead, we urge EPA to require utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional engineer or hydrologist based on a site specific risk evaluation. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associated with the closure of these units and is the approach commonly used by utilities. A closur e plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure time schedules

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 47 Organization 1 : Ohio Environmental Protection Agency (4FF) Commenter Type: State Government
Other Sections: 4.7 4.4.8.5 4.4.8.2

Comment Excerpt Text: Closure criteria [Sec. 257.100] General comments.

• The climate of Ohio is continental, characterized by a relatively large range of seasonal variability with cold winters and warm, humid, summers. Research from the Alternative Cover Assessment Program i ndicates that soil

- only caps are ineffective in the long term for minimizing infiltration under climates like that in Ohio. An FML should be made a standard component of43

the cap system which the alternative provision in 257.100(e) can eliminate based on re gional
climatic conditions.

• It is not clear whether Sec. 257.100(d)(1) establishing permeability requirements intended to apply to the infiltration layer in paragraph (d)(2) or to establish some sort of separate barrier layer. The language in paragraph (e)(1) seems to favor the former interpretation but clarification is necessary.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08270

- 5 Organization 1 : Cliffs Natural Resources Inc. (Cliffs) (4GG) Commenter Type: Other Company
Other Sections: 4.1.3 4.6.1 4.6.1.2 4.4.8.2 4.4.8.4 4.4.6.2 4.4.5.1.1 4.4.5.1.2

Comment Excerpt Text: Cliffs Supports EPA's Proposed "Subtitle D Prime" Approach With Modification

Cliffs supports EPA' s eff orts to implement a federal Subtitle D non

- hazardous waste regulatory program for the disposal of CCRs at surface impoundments and landfills. Cliffs, however, is concerned about various aspects of the Subtitle D regulatory approach provided in the final ru le.

One imp ortant concern is the automatic closure of CCR surface impoundments at utilities under the proposed Subtitle D regulatory program that are currently operating in a manner that is fully protective of human health and the environment.

Cliffs s upp orts EPA's alternative "Subtitle D prime" approach because it would ensure the development of fully protective controls for the disposal of CCRs at landfills and surface impoundments. The "Subtitle D prime" approach would provide the environmental safeg uards EP A is seeking while not imposing unnecessary regulatory costs on the utility sector that in turn increases the cost of electricity to electrical rate payers including Cliffs' mines.

Under the "Subtitle D prime" approach, it would include all of t he elements of the proposed Subtitle D regulatory program except that it "would not require the closure or installation of composite liners in existing surface impoundments; rather these surface impoundments could continue to operate for the remainder of t heir useful life." 75 Fed. Reg. at 35,210. Thus, the "Subtitle D prime" approach avoids a major flaw contained in the Subtitle D regulatory approach that would close down all surface impoundments irrespective of their environmental performance. Under the " Subtitle D prime" approach, existing CCR surface impoundments would continue to be subject to applicable groundwater monitoring standards and corrective action requirements.

Certain modifications to the "Subtitle D prime" approach should be made, howeve r, if EP A adopts this approach in the final rule. These modifications relate to several of the requirements found in the Subtitle D regulatory program proposed. First, EPA should not adopt a specific timeframe for closure but require surface impoundments and landfills to close according to a44

closure plan approved by a state or developed and certified by a registered professional. Second, EP A should not impose location restrictions on existing surface impoundments and landfills because EPA has provided no evidence in the record to substantiate structural stability issues in
these restricted areas.

Third, EPA should amend its run

- on control requirements for surface impoundments by instead just requiring that these units be designed to appropriately address peak discharge events. Fom1h, in terms of groundwater monitoring, EPA should allow the state or a registered professional to delete constituents not reasonably expected to be in the waste or establish an alternative list of indicator parameters consistent with the groundwater monitoring programs applicable to municipal and non

- municipal solid waste landfills.

Fifth, EPA should allow registered professionals to make compliance ce11ifications even if they are employees of the owner/operator of the disposal unit. Finally, EPA should allow for alternate liner systems, because in some regions of the country the proposed composite liner system is simply unnecessary to ensure groundwater protection and in other instances an alternate liner system (i.e. geosynthe tic clay liners) would be more appropriate that the one p roscribed in the proposed rule.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EP A

- HQ

- RCRA

- 2009

- 0640

- 09274

- 14 Organization 1 : RRI Energy Inc. (4HH) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.2

Comment Excerpt Text: A. Timeframe for Closure of Surface Impoundments and Landfills

Under both the Subtitle D and Subtitle D Prime options, there are certain proposed design and siting standards that existing facilities must meet, or they will have to close. Even though in the Subtitle D Prime option, where existing surface impoundments could continue to operate for

t heir remaining useful life,

RRI believes there will be some existing landfills and surface impoundments that cannot meet these newly proposed requirements and will be forced to close. The proposed time table for
closure of these facilities is not realisti c, and should be revised accordingly.

RRI believes that a more appropriate approach for closure would be to require closure of CCR landfills and surface impoundments consistent with a closure plan that has either been approved by a state or developed and certified by a registered professional engineer or geologist. The closure plan would include a reasonable schedule for completion, and would account for the unique closure requirements of CCR disposal landfills and impoundments

.

EPA Response : EPA respond s to this comment in Unit VI. M .4 of the preamble.45

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 22 Organization 1 : Progress Energy, Inc. (4II) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.2

Comment Excerpt Text: Compliance with EPA’s proposed timeframe for closure of surface impoundments and landfills is impossible

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed de sign and operating standards. Even under the Subtitle D Prime option, where CCR surface impoundments operating in an environmentally sound manner could continue to operate, there undoubtedly will be a significant number of impoundments that will have to cl ose. Therefore, a more realistic and achievable closure process is necessary under this option.

The Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or performance criteria ( e.g. , not be l ocated in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). Further, within five years of the
effective date of the Subtit le D rules, existing surface impoundments would be required to be dredged and to install a composite liner and leachate collection system, or close. Because these obligations may be impossible to fulfill and would impose significant operational costs on

ow ners/operators, Progress Energy agrees with EPA that “many surface impoundments may close as a result of these requirements.” Likewise, a number of landfills may also close if they are unable to comply with the “unstable areas” location restriction. Many o f these disposal units will need to close pursuant to the Subtitle D closure framework. The proposed timetables for actually closing these landfills and surface impoundments, however, are unrealistic, and many facilities will be physically incapable of mee ting these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within five years of the effective date of the finalized regulations, which may be extended b y an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment. Landfills typically close each comp onent cell when the cell reaches its disposal capacity so that many cells have already been “closed” when the landfill begins final closure. Surface impoundments, on the other hand, must be entirely dewatered before closure can begin for any portion of the impoundment.

Given the disparity in the sizes of these units, the length of time necessary to dewater impoundments and the need for many of these units to be closed when the rules come into effect, Progress Energy strongly recommends that EPA not establi sh a specific timeframe for closure. Instead, the Company urges EPA to require utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional. The establ ishment of a closure plan, with set schedules, is the most46

effective method to account for the many variables associated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public
wit h certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure schedules.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 33 Organization 1 : Progress Energy, Inc. (4II) Commenter Type: Electric Utility Company
Other Sections: 4.4.3 4.4.8.2

Comment Excerpt Text: On a related note, EPA has made no effort in its Subtitle D proposal to consider those state programs that provide a means to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. After these impoundments are appropriately converted, EPA should specifically identify these facilities as landfill s and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoundments, including potentially closure requirements. This will authorize the continued operati on of these existing CCR landfills and regulate these units pursuant to the appropriate applicable standards and not require utilities to acquire land for the
construction of new landfills.

EPA Response : EPA responds to comments regarding “overfills” in Comment Response

Document Volume 11

.

Section 4.4.8.2

- EPA solicits comment on appropriateness of proposed c/pc requirements for CCR SIs (i.e., modeled on part 265 interim status closure requirements for SIs as well as MSHA requirements) (35207)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 37 Organization 1 : Kansas Department of Health and Environment (4JJ) Commenter Type: State Government
Other Sections: 4.7

Comment Excerpt Text:
Section 257.100 Proposed Rule (c) At closure, the owner or operator of a su rface impoundment must: (1) Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues; (2) Stabilize remaining wastes to a bearing capacity sufficient to support the final cover;
and (3) Cover the surface impou ndment with a final cover designed and constructed to: (i) Provide long

- term minimization of the migration of liquids through the closed impoundment;47

(ii) Function with minimum maintenance; and (iii) Promote drainage and minimize erosion or abrasion of the cover; (iv) Accommodate settling and subsidence so that the cover's integrity is maintained; and (v) Have a final cover system that meets the requirements of subsection (d).

Paragraph (d) of this section prescribes one cover design option and paragraph ( e) authorizes an alternative final cover design. Therefore Kansas requests that paragraph (c)(v) be modified as
follows:

(v) Have a final cover system that meets the requirements of subsection (d) or (e).

EPA Response : The Agency agrees with the commenter, though EPA has reorganized the final regulatory text for greater clarity. For additional information, see Unit VI. M.3 of the preamble

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06198

- 4 Organization 1 : Ameren Corporation (4Z) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.1 4.6.1.4

Comment Excerpt Text: Ill. Closure Timeframe For Of Surface Impoundments And Landfills

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surf ace impoundments operating in an environmentally sound manner could continue to operate, there will undoubtedly be a significant number of impoundments that will have to close. Therefore, a more realistic and achievable closure process is necessary under t his option.

The Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or perfo r mance criteria (e.g., not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). 75 Fed. Reg. at 35241

- 43 (proposed 40 C.F.R. § 257.60

- § 257.65). Further, within five years of the effective date of the Subtitle D rules, existi ng surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. Id. At 35244 (proposed 40 C.F.R. § 257.71 (g)). Because these obligations may be impossible to fulfill and would impose

s ignificant operational costs on owners/operators, we agree with EPA that "many surface impoundments may close as a result of these requirements." Id. at 35199. Likewise, a number of landfills may also close if they are unable to comply with the "unstable a reas" location restriction. Many of these disposal units will need to close pursuant to the Subtitle D closure framework. The proposed timetable for actually closing these landfills and surface impoundments, however, is totally unrealistic and many facilit ies will be physically unable of meeting these schedules.48

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within five years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment . Id. at 35243 (proposed 40 C.F.R. § 257.65). While existing units may be allowed five years to continue operating, the period of time by which closure must be completed once they cease operating

- i.e., stop receiving CCRs

- is simply too short for the va st majority of CCR disposal units, especially surface impoundments. The proposal provides that an owner/operator must bring closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs a nd must complete closure within 180 days following the start of closure activities. Id. at 35253 (proposed 40 C.F.R. § 257.100(k)). This means, for example, that a CCR impoundment that is still operating on the effective date of the rules but subsequently ceases receiving CCRs after the effective date of the rules has only 210 days to complete closure after the final receipt of CCRs.

Given the number and size of the disposal units that utilities operate, a significant number of
units will not be able to c omplete closure within this 21 O

- day timeframe. First, because a large number of sites will have to be closed during roughly the same timeframe, utilities will not be able to obtain the personnel and equipment necessary to close multiple sites, especially since other companies will need to obtain the same resources at the same time. Second, even if sufficient manpower/equipment is available, some owners/operators will simply be unable to close their disposal units in the timeframes EPA proposes, due to the size of certain CCR impoundments and landfills.

For instance, surface impoundments would be required to close by removing liquid wastes or solidifying remaining wastes. Id. at 35252 (proposed 40 C.F.R. § 257.100(c)(1». For very small surface impoundments , it is conceivable that an owner/operator could comply with this requirement within the proposed time frame; for many surface impoundments, however, dewatering the impoundment alone can take several years to complete, making it physically impossible to co mply with EPA's closure timeframe. As EPA acknowledges, its closure timeframes were borrowed directly from the existing closure timeframes for MSWLFs under 40 C.F.R. Part 258. Id. at 35209. While application of the MSWLFs standards to CCR disposal units
is appropriate in many respects, this is not one of those instances. The CCR disposal units often are much larger than MSWLFs, and MSWLFs obviously do not contain the volume of water contained in CCR impoundments.

Furthermore, landfills typically close eac h component cell when the cell reaches its disposal capacity so that many cells have already been "closed" when the landfill begins final closure. Surface impoundments, on the other hand, must be entirely dewatered before closure can even begin for any por tion of the impoundment.

While EPA's proposed closure timeframe may be appropriate for some landfill types, it is entirely inappropriate to apply this same timeframe to surface impoundments. Additionally, 210 days may not be sufficient to acquire the mat erials needed to conduct and complete closure. For example, due to the significant volume of clay that is needed to cover an impoundment hundreds49

of acres in size (as well as the likelihood that other units may need to close in the same timeframe), there m ay be insufficient supply of clay and/or it may be impossible to transport the needed volume of clay to the site. Moreover, in some circumstances, states may not be able to provide final approval of a facility's closure plan before the end of the 210

- day c losure time limit, putting facilities in automatic non

- compliance through no fault of their own, but due simply to limited state resources.

Given the disparity in the sizes of these units, the length of time necessary to dewater impoundments, and the nee d for many of these units to be closed when the rules come into effect, Ameren strongly recommends that EPA not establish a specific timeframe for closure. Instead, we urge EPA to require utilities to close CCR surface impoundments and landfills
consistent with a closure plan approved by a state, or developed and certified by a registered professional. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure schedu les.

On a related note, EPA has made no effort in its Subtitle D proposal to consider those state programs that provide a means to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. After these impoundmen ts are appropriately converted, EPA should specifically identify these facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoun dments, including closure requirements. This will allow the continued operation of these existing CCR landfills and regulate these units pursuant to the appropriate applicable standards and not require utilities to acquire land for the construction of

new landfills.

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the preamble. EPA responds to comments regarding “overfills” in Comment Response Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 30 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) (4A) Commenter Type: State Government
Other Sections: 4.4.5.2 4.4.5.1 4.4.7.4 4.4.9.1

Comment Excerpt Text: Surface impoundments receiving CCR for treatment or disposal should be regulated from initial design through completion of post

- closure monitoring requirements. For existing CCR surface impoundments there should be two categories; (1) CCR waste surface impoundments to be used
for no mor e than five additional years from the effective date of the Final EPA CCR Rule, and (2) CCR surface impoundments that will be used five years after the effective date of the EPA
CCR Final Rule.

(1) Regulations for existing CCR surface impoundments to be c losed within five years of the50

effective date of the Final EPA CCR Rule should include structural analysis with repair/improvements required to meet a dam safety factor of 1.2. Additional requirements should include inspections quarterly, installation of g roundwater monitoring wells, semiannual groundwater monitoring, closure plan, post

- closure monitoring and maintenance and financial assurance in an amount sufficient to cap the surface impoundment and to perform environmental investigation and cleanup shou ld the surface impoundment fail or have releases to groundwater and surface water. The CCR surface impoundment owner should be required to submit a statement committing to closure of the surface impoundment within five years and acknowledge the responsibil ity to comply with (2) below should the surface impoundment not be closed on
schedule.

(2) Regulations for existing CCR surface impoundments to be operated for more than five years
after the effective date of the Final EPA CCR Rule should include a struct ural analysis with repair/improvements required to meet a dam safety factor of 1.5. These surface impoundments should be retrofitted with a synthetic liner to prevent failure migration of CCR contaminants into ground water. The CCR surface impoundment owne r should be required to obtain a solid waste processing/disposal permit following the RCRA Subtitle D public participation process. Additional recommended requirements are quarterly inspections, installation of groundwater monitoring wells, semi

- annual gro undwater sampling, annual estimation of remaining life, closure plan with cap, post

- closure monitoring and maintenance plan and financial assurance sufficient to perform environmental investigation and clean up should the surface impoundment
fail or releas e contaminants to groundwater or surface water.

EPA Response : The Agency agre es with the commenter that CCR s urface impoundments should be subject to closure requirements and post

- closure monitoring requirements. Closure requirements are discussed in Un it VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 31 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) (4A) Commenter Type: State Government
Other Sections: 4.4.4.1 4.4.5.1 4.4.5.2 4.4.7.1 4.4.9.1

Comment Excerpt Text: New CCR surface impoundments should be permitted following the EPA Subtitle D criteria for solid waste landfills. The regulations should include:

- Public Notice of intent to construct.

- Demonstration of suitable geologic conditions for constr uction.

- An engineering design which includes a geologic buffer, synthetic liner, leachate collection system, groundwater monitoring system with a minimum of four wells, buffer zones, construction with a dam safety factor of 1.5, estimated disposal capacit y of the surface impoundment, seismic analysis and seismic safety factor of 1.5, closure plan, post

- closure monitoring and maintenance plan and financial assurance in an amount sufficient to complete environmental investigation and cleanup should the surfa ce impoundment fail or have releases to groundwater and/or surface water.

- The initial plans should indicate whether the surface impoundment will be used for CCR51

treatment or for waste treatment and CCR disposal.

EPA Response : The Agency agre es with the commenter that CCR s urface impoundments should be subject to closure requirements and post

- closure monitoring requirements. Closure requirements are discussed in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 57 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) (4A) Commenter Type: State Government
Other Sections: 4.4.5.2 4.4.5.1 4.4.7.4 4.4.9.1

Comment Excerpt Text: For closing surface impoundments, the CCR generator must make infrastructure changes t o handle and transport CCR before the surface impoundment can be closed. The structural integrity of surface impoundments must be evaluated by an independent professional and the owner/operator must be required to repair and improve the structural integrit y of the surface impoundment.

EPA should promulgate rules that provide two opportunities for existing surface impoundments; (1) short term use and closure or (2) long term use with design modifications. Surface Impoundments to be used for five years or le ss after rule promulgation and then closed should be required to have a structural integrity analysis with repairs and improvements made providing a dam safety factor of 1.2. Semi

- annual inspections, groundwater monitoring, financial assurance, closure pla ns, and post closure monitoring and maintenance should be required.

For surface impoundments to be used for longer than five years, all requirements in the paragraph above apply as well as a requirement to obtain a permit through the public notice/public hearing/public comment process. For this category, the surface impoundment should be retrofitted with a synthetic liner.

All new surface impoundments must be permitted similarly to a municipal solid waste landfill.

EPA Response : The final rule approach is discussed in the preamble to the final rule

. In particular, c losure requirements are discussed in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 24 Organization 1 : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, Mississippi Power Company (4C) Commenter Type: Electric Utility Company

Comment Excerpt Text: 7. Closure Requirements

a. Proposals for Surface Impoundments Are Impossible in Some Respect s and Unclear in Others.52

EPA has requested comment on proposed closure requirements based on Part 265 interim status regulations and on whether the closure requirements of the Mine Safety and Health Administration (“MSHA”) are appropriate. [Footnote 74: See id.] The 30

- day and 180

- day deadlines imposed under Section 257.100(j) & (k) are technically impracticable and in many cases physically impossible. Section 257.65 describes a potential five

- year time frame for closure of landfills or surface impoundmen ts that do not meet the demonstrations in Section 257.64(a), with an opportunity for a two

- year extension.

As described in Part II.B.1 above, Southern Company believes compliance with EPA’s proposed time frame for closure of CCB disposal facilities is ph ysically impossible in some or all cases. Additionally, imposing an “initiation of closure” requirement from the date of final receipt of CCBs is an arbitrary trigger. For example, final receipt of CCBs at a landfill or impoundment could be dictated by the construction schedule for a new disposal site or for conversion of ash handling systems. First and foremost, utilities should be allowed to dispose of CCBs in existing surface impoundments for the full extent of those facilities’ useful life, as contempla ted under the D Prime approach.

In the event a surface impoundment or landfill does not have any remaining useful life, the full time frame for closure under the regulations should be allowed without any additional requirements for either initiation or c ompletion of closure. Just to dewater a surface impoundment generally takes longer than 180 days, as discussed above at Part II.B.1 of these comments. These deadlines should be eliminated in favor of a requirement to provide notice of closure to the regula tory agency, which may propose a schedule for various milestones. There is only so much a facility owner can do to speed up the processes that are necessary for closure. To impose impossible deadlines does nothing to enhance compliance and achieves no obje ctive other than the creation of unavoidable noncompliance situations for uncontrollable circumstances. Such a result would be pointless and unfair

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06308

- 10 Organization 1 : NRG Energy Inc. (4KK) Commenter Type: Electric Utility Company

Comment Excerpt Text: A. Compliance with the Proposed Time Frame for Closure of Surface Impoundment and
Landfills

The proposed timeline for app licable facilities is not feasible. The proposal provides that an owner/operator begin closure activities within 30 days after the known final receipt of CCRs and complete closure within 180 days following the start of closure. This means that an impoundme nt that is still operating on the effective date of the rule but subsequently ceases receiving CCRs after the effective date of the rule has only 210 days to complete closure.

As an example, the rule proposes surface impoundments would be required to clo se by removing liquid wastes or solidify the remaining waste. NRG believes that it would be impossible to53

comply with this requirement within the proposed time frame because dewatering the impoundment alone can take significantly longer. EPA’s proposed clo sure timeframe, while appropriate for landfills, is entirely inappropriate for surface impoundments. NRG strongly recommends that EPA not establish a specific timeframe for closure, but instead recommend that EPA require power plant operators to close surf ace impoundments consistent with a state approved closure plan. A closure plan will also provide EPA and the public with certainty that closure will occur safely, in a timely manner, and in accordance with best practice procedures.

In addition, EPA shoul d allow the conversion of CCR surface impoundments to landfills through dewatering and other appropriate requirements. This would allow the continued use of existing waste management units rather than expansion of Land coverage. After completion of the

con version process, surface impoundments could be reclassified as landfills and impose the appropriate regulatory requirements.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. EPA responds to comments regarding “overfills” and rel ated issues in Comment Response

Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 126 Organization 1 : Earthjustice et. al. (4D) Commenter Type: Advocacy Group
Other Sections: 3.7.4

Comment Excerpt Text: What should the post closure care and monitoring requirements be for surface impoundments:

i. With waste left in place?

Surface impoundments which continue to be used after the implementation of the final rule should be required to monitor groundwater and the integrity of the cap for a period of at least 30 years after closure with waste left in

- place. Most surface impoundments used for CCR’s are not lined and those which were lined prior to use, were not equipped with a leachate collection and
removal system capable of maintaining the hydraulic head of the leachate at less than 30 cm on the liner. The contaminants in the CCR’s will remain leachable indefinitely and thus, a minimum of a 30 year monitoring period with extensions based on the concentration s of hazardous substances in the groundwater. Such extension of additional 30 years of monitoring should be restarted once hydraulic controls, caps, slurry trench walls, and pumping of groundwater to create inward gradients etc. have been implemented and g roundwater remediation has been completed.

ii. With waste removed?

Surface impoundments that are clean closed, that is, from which all CCR materials have been removed, will not require an extended period of monitoring, subject to the following provisio ns:

a. Adequate engineering controls were put in

- place during excavation of the wastes to prevent54

the transport of contaminants from the CCR waste to the surface water adjacent to the impoundment and the groundwater underlying the impoundment.

b. Adequ ate engineering controls were put in

- place during excavation of the wastes to prevent
the cross

- contamination of surface and subsurface soils adjacent to the impoundment.

c. All CCR waste and any impacted surface soils have been removed from the impoundm ent.

d. Quarterly monitoring of the shallow groundwater beneath the surface impoundment for a period of at least 5 years demonstrates that no residual CCR was left in place.

e. All closure and removal activities were supervised by a registered professi onal engineer.

f. Adequate documentation of the closure activities is filed with the EPA and State agencies with regulatory jurisdiction over the impoundment.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 14 Organization 1 : Dayton Power & Light Company (DP&L) (4LL) Commenter Type: Electric Utility Company

Comment Excerpt Text: A. The timeframe for the closure of surface impoundments and landfills under the subtitle D option is t oo short. As contemplated in the subtitle D option (and D prime option), numerous CCR surface impoundments and landfills would likely need to be closed. Proposed 40 CFR §257.100 G) and (k) specify that the owner or operator of a CCR landfill or surface imp oundment to be closed must begin closure activities no later than 30 days after the date on which the CCR landfill or surface impoundment receives the known final receipt of CCR (or within one year after the most recent receipt of CCRs if the unit has rema ining capacity and there is a reasonable likelihood that it will receive additional CCRs). Once closure activities begin, they must be completed within 180 days. Surface impoundments used for CCR management are generally of significant size and must be dew atered to be properly closed. Such dewatering may take several years which simply is not consistent with a 210 day closure requirement. In addition, the material and labor resources to close a surface impoundment (such as clay for capping) will likely not be available under such a restricted timeframe

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 28 Organization 1 : Duke Energy (4MM) Commenter Type: Electric Utility Company

Comment Excerpt Text: Duke Energy agrees that existing surface impoundments that are not operating in accordance55

with performance

- based standards (and cannot otherwise be brought within the standards), or have reached their maximum storage capacity and where no d redging can occur, should be closed. Duke Energy also agrees with the design standards proposed by EPA for the final cap of such surface impoundments. However, one of the most significant flaws identified by Duke Energy in the Subtitle D proposal is the re quirement for closure of CCR surface impoundments that do not meet the specific liner design standards as proposed in the rule, regardless of how the unit is performing.

EPA Response : In regard to the final cover systems, EPA addresses these issues in Unit

VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 30 Organization 1 : Duke Energy (4MM) Commenter Type: Electric Utility Company

Comment Excerpt Text: In addition, EPA proposes to require a utility to begin closure of surface impoun dments within 30 days of receipt of final CCR placement and complete closure within 180 days of the start of closure. With this requirement, EPA appears to be applying the closure requirements designed specifically for landfills to the closing of CCR surfa ce impoundments. The problem is that surface impoundments cannot be held to the same closure time periods that are generally accepted for landfills because of the way surface impoundments are designed, constructed, and operated.

Generally, landfills are b rought to near final grade and covered with temporary cover as the facility is filled. Thus, final closure of landfills can be completed in approximately 180 days from final placement of waste. Because of their specific design and operation, however, surfa ce impoundments by their very nature do not utilize temporary cover as they are being filled and are therefore not covered until after the final placement of CCR. At that time, the impoundment must be dewatered prior to the commencement of further closure activities while complying with National Pollutant Discharge Elimination System (“NPDES”) permit requirements. The dewatering step alone can take far longer than 180 days so as to protect the environment. The construction of the final surface cap or cover after dewatering can take even longer to complete.

All aspects of a CCR surface impoundment closure must be conducted in a manner that is both technically feasible and protective of the environment with respect to the construction of the final cap. The cl osure process must also take into account the fact that CCR surface impoundments are often part of a complex wastewater treatment process that serves a critical function for other plant systems (such as boiler blowdown, stormwater runoff, and laboratory dr ains) that are essential activities associated with the generation of electricity. If a surface impoundment must be closed, adequate time must be allowed for the addition of an alternate (and costly) wastewater treatment process to avoid forcing electric p ower plants off

- line unnecessarily with potential impacts to electric reliability and cost.

Even the smallest surface impoundment cannot be closed properly within the time frame currently proposed by EPA. Duke Energy therefore recommends that EPA eliminat e all56

references to initiating closure within 30 days of the final receipt of CCR and completing closure within 180 days of the start of closure. Instead, the closure schedule should be addressed in a
unit

- specific closure plan that includes a reasonable a nd technically feasible closure schedule developed in conjunction with and agreed to by the state environmental agency having jurisdiction.

Duke Energy recommends that EPA require closure and post

- closure plans be developed and approved for all active sur face impoundments. The closure plan would be initiated and implemented according to an approved schedule upon the final receipt of waste. The schedule for starting and completing closure should be based on best engineering management practices as they rela te to the size of the impoundment and availability of the materials (including wastewater treatment) necessary to close the impoundment properly. As referenced above, Duke Energy contends that existing state regulatory agencies should be utilized to facili tate and implement these closure plans.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 64 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) (4BB) Commenter Type: State Government
Other Sections: 4.4.8.1

Comment Excerpt Text: The final cover design requirements on pp. 35208

– 35210 of the preamble, propose using the Part 258 MSW landfill design requirements as a general model. In general, we agree with this approach. Comments are:

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

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

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 66 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) (4BB)57

Commenter Type: State Government
Other Sections: 4.4.8.1

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

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 31 Organization 1 : Dynegy Inc (4F) Commenter Type: Electric Utility Company

Comment Excerpt Text: The Proposed Closure Timeframes for Surface Impound ments are Unrealistic and Unachievable

As proposed, within five years after the effective date of the rule, surface impoundments must either be closed or be dredged and have composite liners installed. Proposed 40 C.F.R. § 257.71 (g). Once a surface impou ndment ceases operation, the owner/operator must begin closure activities within 30 days and complete closure within 180 days following the start of closure activities. Proposed 40 C.F.R. § 257. 100(j)

- (k) . In effect, closure must be completed no more
than 210 days after the final receipt of CCRs. Closure would require the elimination of free liquids (or solidification of remaining wastes), stabilization of remaining wastes, and installation of a final cover. Proposed 40 C.F.R. § 257.100(c).

The proposed 2 10

- day period to complete closure

-- essentially seven months or only one
construction season

-- is unrealistic and fails to recognize that the time needed to complete closure of a CCR surface impoundment is dependent on many site

- specific factors. These f actors include the water level in the impoundment; the volume, type and composition of CCRs in the impoundment; the age of the impoundment; the method of CCR conveyance; the geometry of the impoundment; and the condition of the impoundment berm and liner. For large active surface impoundments with significant water levels, dewatering activities (including the engineering, installation, and monitoring of a dewatering system) necessary to enable construction of a cap/final cover may take more than one year. I n addition to dewatering, closing a surface impoundment would involve initial engineering investigation, design and analysis of the closure system; site stabilization and monitoring, as needed; installation of a soil crown; acquiring and transporting large quantities of clay cover, which may not be available nearby; transporting and installing large areas of synthetic liner; significant earthmoving work; and securing the specialized labor and equipment/materials required to perform these activities. These a ctivities58

may be interrupted and delayed for relatively significant periods by adverse and/or seasonal weather conditions. In addition, because the proposed rule will likely require many surface impoundments to close at essentially the same time, delays ma y be caused by the inability to secure specialized labor and resources.

Dynegy has 22 active ash pond cells that would have to be closed or retrofitted under proposed Subtitle D. Given the large size of these active cells (up to approximately 240 acres) a nd that these cells are frequently operated as part of an even larger single ash pond system (i.e., combined cell area can reach 600 acres), closing these cells in the proposed 210

- day period is not feasible. While certain small surface impoundments potent ially could be closed within one construction season (provided adequate materials and resources were available and the weather was favorable), Dynegy estimates that it would take three to five years to complete closure of its largest surface impoundments.

EPA's inflexible closure timeline also fails to account for several other key considerations. First, the proposed 210

- day period does not consider that state permits or other regulatory approvals may need to be obtained before any closure activities are c ommenced. Delays by the permitting authority may make compliance with the 210

- day deadline impossible. Second, EPA's proposed timeline fails to account for the difficulty of one company trying to close multiple sites/impoundments at the same time.

Further more, operational

- ready alternate landfill facilities (as well as alternate wastewater treatment systems to address low volume non

- CCR wastewaters that are currently directed to the CCR surface impoundments) would be required before closures of existing su rface impoundments can commence. Except for its Hennepin power plant, Dynegy does not currently have dry disposal capacity on site at its Illinois facilities. Given the time necessary to plan and design replacement disposal systems, investigate the technic al and environmental suitability of the site, acquire additional land (where needed), and develop, permit, and construct such capacity, adequate dry disposal capacity may not be available in the proposed deadlines, and the
construction demands of concurren tly providing adequate dry disposal replacement capacity (and alternate wastewater systems) at multiple facilities would be very burdensome. Again, EPA's proposed schedule fails to account for the compounded workload effect associated with simultaneously m anaging multiple landfill construction projects and multiple projects to close or retrofit existing surface impoundments.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency considered the commenter’s statements regarding the statement that it would take “three to five years to complete closure of its largest surface impoundments” when developing the timeframes for closure. According to the EPA’s dat abase of survey responses, the impoundments at Dynegy’s power plants include a 90

- acre impoundment (East Ash Pond) at Havana Power Station. See database at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys/index.htm#D

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 10
Commenter 1 : Anonymous (4CC)59

Commenter Type: Anonymous

Comment Excerpt Text: Please add language in subsection 257.71(g) that clearly requires owners of existing surface impoundments who continue to operate the impoundment after the effective date of the rule, but choose to close rather than dredge the impoundment and retrofit it with a composite liner system, to conduct pos t

- closure activities in accordance with §257.101. The language should be similar to that used in §257.65.

EPA Response : Closure and post

- closure comments are addressed in Unit VI. M of the preamble. In addition, the final rule under §257.104(a) includes provisions on what CCR units are covered by the post

- closure care provisions.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06517

- 16
Commenter 1 : Anonymous (4CC) Commenter Type: Anonymous
Other Sections: 4.4.8.1

Comment Excerpt Text:
Closure

40 CFR 257.100 Clo sure Criteria

Subsection 257.100(g) should be revised to include specific requirements for slope stability. Subsection 257.100(a) does include a general requirement that the closure plan include provisions for major slope stability, but subsection 257.100 (g), which addresses the requirements for the content of closure plans, should include more specific language.

EPA Response : EPA responds to this comment in Unit VI. M

. 1 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 31 Organization 1 : West Virginia Department of Environmental Protection (WVDEP) (4DD) Commenter Type: State Government
Other Sections: 4.4.8.1

Comment Excerpt Text: Section 257.100(j) states that CCR landfills and surface impoundments must begin closure
activities no later tha n 30 days after the date on which the CCR landfill or surface impoundment receives the known final receipt of CCR, or if the CCR landfill or surface impoundment contains remaining capacity, no later than one year after the most recent receipt of CCRs. This section appears to require commencement of landfill closure within one year after the most recent receipt of CCRs. If this assumption is correct, this section is inconsistent with the remainder of the proposed rule as landfill closure is not referenced el sewhere. Existing CCR landfills must be able to continue to operate until remaining capacity is exhausted.60

To allow for inclement weather conditions, the time period for closure commencement should be extended to 180 days. Also, this section requires tha t closure activities be completed within 180 days following the beginning of closure activities. While this time period may be sufficient for landfill closure, it is insufficient for impoundment closure.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06827

- 10 Organization 1 : Oklahoma Gas and Electric Company (OG&E) (4NN) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.4

Comment Excerpt Text:
C. Timeframes for Closure of CC R Surface Impoundments are Unrealistic The Subtitle D option includes an unrealistic timetable for the closure of CCR surface impoundments that are unable to meet the proposed design and operating standards. Specifically, the Agency proposes to require sur face impoundments that cannot meet these standards to close within 5 years of the effective date of the final rule. This time period may be extended by an additional 2 years if the owner or operator can demonstrate that there exists a lack of alternative
d isposal capacity and the unit poses no immediate threats to human health or the environment.

While existing surface impoundments may be allowed 5 years to continue operating, the period of time by which closure must be completed once they cease operating (i.e. stop receiving CCRs) is too short. As written, the proposed rule provides that an owner/operator must begin closure activities within 30 days after the date on which a CCR impoundment last receives CCRs and must complete closure within 180 days follo wing the start of those closure activities. For example, a CCR surface impoundment that is in operation after the effective date of the final rule but later ceases receiving CCRs sometime thereafter would only have 210 days to complete all
closure activiti es.

Given the vast difference in the sizes and configurations of CCR surface impoundments and the level of effort necessary to close them, OG&E recommends that the Agency avoid establishing a specific time frame by which their closure must be completed. I nstead, we encourage the Agency to require closure of impoundments in accordance with timeframes established in a closure plan approved by the appropriate state regulatory agency. An approved closure plan would provide the owner/operator with the flexibili ty to account for the many variables associated with the closure of their particular impoundment while establishing a written record of how and when the impoundment will be closed

.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06877

- 5 Organization 1 : Detroit Edison Company (4OO)61

Commenter Type: Electric Utility Company
Other Sections: 4.4.3

Comment Excerpt Text: Like USWAG, we believe that the Subtitle D option can be further improved through greater reliance on state oversight, permitting and the ability to address site specific issues, through state oversight. On pages 168 and 169 of its comments, USWAG is urgin g the EPA to adopt a more flexible approach and timetable with regards to the closure of CCR disposal units. A more flexible approach is needed under any of the regulatory scenarios EPA has proposed. Detroit Edison wishes to not only echo USWAG's general c omments regarding closure, but also to provide the following practical and relevant example in support of a more flexible, site specific approach toward closure.

The company currently operates a 400 acre, 40 foot deep fly ash impoundment that is surround ed by impermeable clay. The impoundment is presently about 70% full. The company is presently considering where it could obtain additional disposal capacity. The most attractive option at this time for siting additional capacity is to locate a new landfill unit on top of the existing impoundment. A number of considerations will enter into any final decisions and a paramount consideration will be the environmental impact of a new unit. A new unit located on top of the existing impoundment would appear to hav e the least environmental impact, since it avoids development of a Greenfield site and subsequent loss of land. Additionally the existing impoundment, being underlain by an impermeable clay base and surrounded by impermeable clay sides, is fully protective of the environment. The water level and water pressure on the clay liner underlying within the existing impoundment would actually be decreased by increasing the fill volume as explained below.

In landfill parlance, this new landfill unit would be chara cterized as a vertical extension to an existing unit. The existing unit is the fly ash impoundment and the new unit would be the landfill on top of the impoundment. Such a vertical extension is structurally viable so long as the underlying fly ash in the e xisting impoundment is consolidated to a much greater degree than presently exists. The utility industry has successfully consolidated ash in such impoundments by placing a drainage layer on top to the impounded ash, placing drainage pipes in this drainage layer and placing a weight or surcharge on top of the drainage layer. The attached figures depict both the existing impoundment and a potential vertical extension with a permeable drainage layer between the two units. Currently there is 40 feet of water p ressure on the clay liner. With the installation of a drainage layer, this water pressure would actually decrease as the fly ash consolidates, the pore water drains and the drainage layer sinks into the void created by the consolidating ash. While this pro cedure has been proven in other CCR impoundment applications, it takes on average a decade to completely consolidate the ash.

The proposed rules unfortunately do not provide for a ten year period for consolidation of coal ash or the placement of a permea ble, rather than impermeable layer on top of an impoundment. Nor do the proposed rules appear to allow for the reuse of an existing impoundment and its conversion to a vertically expanded landfill. The rules do not consider that a coal ash landfill can

con sists of different units. Both the proposed C and D rule only provide for the closure of impoundments and not their conversion to a landfill (Although the D option allows for the62

continued operation of an impoundment if all of the wastes are excavated and a composite line installed, the removal of 20 million tons of already deposited coal ash in this 400 acre impoundment is impractical).

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M.4 of the preamble

. EPA responds to comments regarding “overfills” and related issues in Comment Response Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06877

- 8 Organization 1 : Detroit Edison Company (4OO) Commenter Type: Electric Utility Company
Other Sections: 4.4.3

Comment Excerpt Text: [See original comment for new impoundment design images]

EPA Response : See response to EPA

- HQ

- RCRA

- 2009

- 0640

- 06877

- 5 above

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06956

- 7 Organization 1 : Tri

- State Generation & Transmission (4EE) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.1

Comment Excerpt Text: A. Compliance With EPA's Proposed Timeframe For Closure Of Surface Impoundments And
Landfills Is Unrealistic a nd Unachievable

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime optio n, where CCR surface impoundments operating in an environmentally sound manner could continue to operate, there will undoubtedly be a significant number of impoundments that will have to close due to location restrictions and/or performance criteria. There fore, a more realistic and achievable closure process is necessary under this option.

The Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or performance criteria ( e.g. , not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). Further, within five years of the
effective date of the Subtitle D rules , existing surface impoundments would be required to be dredged and have installed a composite liner and leachate collection system, or close. Also, a number of landfills may close if they are unable to comply with the unstable areas location
restriction. Many of these disposal units will need to close pursuant to the Subtitle D closure framework. The proposed time table for closing these landfills and surface impoundments is63

unrealistic and many facilities will be physically incapable of meeting these sche dules.

In particular, EPA proposes to require disposal units that cannot meet the location restrictions or associated operating standards to close within 5 years of the effective date of the finalized regulations, which may be extended by an additional tw o years if the owner or operator can make a particular demonstration that there exists a lack of alternative disposal capacity and the unit poses no immediate threats to human health or the environment. While existing units may be allowed 5 years to contin ue operating, the period of time by which closure must be completed once they cease operating

– i.e. , stop receiving CCRs

– is simply too short for the vast majority of CCR disposal units, especially surface impoundments. The proposal provides that an

owne r/operator must begin closure activities within 30 days after the date on which the CCR landfill or impoundment receives the known final receipt of CCRs and must complete closure within 180 days following the start of closure activities. This means, for ex ample, that a CCR impoundment that is still operating on the effective date of the rules, but subsequently ceases receiving CCRs after the effective date of the rules, has only 210 days to complete closure after the final receipt of CCRs.

Given the numbe r and size of the disposal units that Tri

- State G&T operates, we will not be able to complete closure within this 210 day time frame. Tri

- State G&T questions EPAs wisdom in proposing this requirement. Tri

- State also questions where CCRs may be placed when the 210 day timeframe has passed. In Tri

- State’s experience, it takes at least 4

– 5 years to site a new facility. Because a large number of sites will have to be closed during roughly the same time frame, Tri

- State G&T will not be able to obtain the perso nnel and equipment necessary to close multiple sites, especially since other companies will need to obtain the same resources at the same time. Furthermore, even if sufficient manpower/equipment is available, Tri

- State G&T will simply be unable to close th eir disposal units in the timeframes EPA proposes, due to the size of
certain CCR landfills.

Given the wide variety of unit size, the length of time necessary to dewater impoundments, and the need for many of these units to be closed when the rules come into effect, Tri

- State G&T recommends that EPA not establish a specific time frame for closure. Instead, we urge EPA to require utilities to close CCR surface impoundments and landfills consistent with a closure plan approved by a state, or developed and c ertified by a registered professional engineer or hydrologist based on a site specific risk evaluation. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associated with the
closure of t hese units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with wholly unrealistic closure t ime schedules

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 19 Organization 1 : Aquaterra Environmental Solutions, Inc. (4PP) Commenter Type: Other Company
Other Sections: 3.4.1.4 3.7.464

Comment Excerpt Text: 40 CFR 268.14 Surface impoundment exemptions

Subsection 268.14(d) requires owners of existing surface impoundments to close in accordance with subpart G of part 264 within two years after placement of waste ceases. This reference should be to subpart G of part 265. If the reference to part 264 is int entional, please explain the
rationale for this.

Also, in regard to closure, subsection 268.14(d) should reference §265.228 as well as subpart G,
to be consisten t with §264.1305 and §265.1305.

EPA Response : This comment pertains to the co

- proposed appr oach under subtitle C of RCRA. No response is necessary here to this comment.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07534

- 3 Organization 1 : Aquaterra Environmental Solutions, Inc. (4PP) Commenter Type: Other Company
Other Sections: 4.4.3 3.4.1.4

Commen t Excerpt Text:
40 CFR 257.2 Definitions

CCR surface impoundment Includes any facility designed to hold an accumulation of CCRs containing free liquids

Many owners of existing permitted utility waste landfills currently operate their facilities by sluicing ash into the disposal area. It would appear that the EPA would consider these facilities to be surface impoundments by strict interpretation of the pro posed definition. As the rules are currently proposed, this would mean that the owner would only be allowed to continue to operate the facility for five years beyond the effective date of the rule (unless they chose to remove the
CCRs and retrofit the faci lity with a composite liner system). By contrast, if the facility were considered to be a landfill, the owner could continue to operate it until it reached capacity. Please clarify whether this interpretation is correct.

If this interpretation is correct , would the landfill still be considered to be a surface impoundment if the owner ceased sluicing and began dry

- handling the ash for a reasonable amount of time prior to the effective date of the rule? If this is a viable approach, the EPA should provide

g uidance to owners to assist them in evaluating their options in these situations, such as a reasonable length of time, acceptable moisture content of deposited material, etc.

EPA Response : This comment is addressed elsewhere in the preamble and/or comment response documents.65

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 47 Organization 1 : Ohio Environmental Protection Agency (4FF) Commenter Type: State Government
Other Sections: 4.7 4.4.8.5 4.4.8.1

Comment Excerpt Text: Closure criteria [Sec. 257.100] General comments.

• The climate of Ohio is continental, characterized by a relatively large range of seasonal variability with cold winters and warm, humid, summers. Research from the Alternative Cover Assessment Program i ndicates that soil

- only caps are ineffective in the long term for minimizing infiltration under climates like that in Ohio. An FML should be made a standard component of the cap system which the alternative provision in 257.100(e) can eliminate based on re gional
climatic conditions.

• It is not clear whether Sec. 257.100(d)(1) establishing permeability requirements intended to apply to the infiltration layer in paragraph (d)(2) or to establish some sort of separate barrier layer. The language in paragraph (e)(1) seems to favor the former interpretation but clarification is necessary.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 32 Organization 1 : Xcel Energy (4QQ) Commenter Type: Electric Utility Company
Other Sections: 4.6.1.2

Comment Excerpt Text: 13 Surface Impoundment Closeout: We strongly agree that the EPA rule must recognize and allow for continued operation of CCR surface impoundments that are well designed and operated , and that pose minimal risk to groundwater. Although we specifically advocate for the RCRA

- D Prime alternative, EPA must at a minimum allow for a timely and predictable variance process under any RCRA

- D scenario. We also believe that the FEMA dam safety r ating system, while a useful tool to determine the degree of engineering and inspection rigor warranted at a given facility, is not by itself an appropriate criteria to arbitrarily mandate closure. Any highway bridge, office building, river dam, rail line or other structure poses a safety risk if not properly constructed and maintained. CCR impoundments are no different. Impoundments that are properly designed, routinely inspected, and well maintained to insure ongoing safety and integrity should be allowed to continue operation. When the time comes for CCR surface impoundments (or CCR landfills) to be closed, EPA must not impose mandatory federal time limits. EPA's proposed times frames are too short in most cases because they ignore factors such as the siz e and design of the facility, the characteristics of the waste, the availability of funding, labor and materials, and seasonal weather conditions that limit the allowable construction season. We strongly urge EPA to allow owners and operators to work direc tly with their states to agree on appropriate time frames, conditions66

and methods for closure under state

- approved plans. State regulatory agencies are in the best position to establish appropriate requirements and time flames based on local circumstances.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 11 Organization 1 : LG&E and KU Energy LLC (4RR) Commenter Type: Electric Utility Company

Comment Excerpt Text: IX.EPA’s Proposed Closure Schedule Must Be Changed.

PA has established an unrealistic timetable for closure of surface impoundments and landfills that are unable to meet the proposed design and operating standards. The Proposed Rule generally allows disp osal units that cannot meet the applicable standards to close within five years of the effective date of the final regulations, which may be extended by an additional two years under certain circumstances. While existing units may be allowed five years to continue operating, once a unit ceases receiving CCRs it must commence closure within 30 days and complete closure within 180 days thereafter (for a total of 210 days). CCR surface impoundments often incorporate large surface areas and significant volumes of CCR storage that take many years to dewater and dredge. Landfills typically close multiple cells in the course of closure so that many cells have been closed when the landfill begins final closure. In some cases, it may be impossible to accumulate the s ignificant volumes of clay and other materials necessary for closure or obtain state approval of closure plans within the 210

- day period allowed for closure. We request that EPA eliminate any across the board timeframe for closure and instead
allow CCR sur face impoundments and landfills to be closed in accordance with the site

- specific schedule included in the facility’s approved closure plan. The individual closure schedule would be determined by the state on a case by case basis after considering the rele vant site

- specific
considerations.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 14 Organization 1 : Electric Power Generation Association (4SS) Commenter Type: Trade Association
Other Sections: 4.4.8.4

Comment Excerpt Text: A. Timeframe for Closure of Surface Impoundments and Landfills.

Under both the Subtitle D and Subtitle D Prime options, there are certain proposed design and siting standards that existing facilities must me et, or they will have to close. Even though in the Subtitle D Prime option, where existing surface impoundments could continue to operate for their remaining useful life, EPGA believes there will be some existing landfills and surface impoundments that can not meet these newly proposed requirements and will be forced to close.67

The proposed time table for closure of these facilities is not realistic, and should be revised accordingly.

In the proposed 40 CFR Section 257.100 Closure Criteria under subsection 0 ) and (k), the owner or operator must begin closure activities no later than 30 days after receiving the last waste shipment and complete closure activities in accordance with their closure plan 180 days following the initiation of closure activities. Thus , EPA expects that closure activities for landfills and surface impoundments will take no more than 210 days to complete. Closure within
this time allotment would be unachievable in most cases. EPA has based this closure criteria on its experience with the operation of municipal solid waste landfills, and thus has borrowed these closure time frames directly from the landfill requirements in 40 C.F.R. Part 258.75 Fed. Reg. at 35209. Municipal solid waste landfills typically operate differently from CCR landf ills, in that they operate small open cells, closing each cell as they proceed to fill the capacity of the landfill. CCR landfills also usually operate using cell construction, but those cells are often larger, with more open area that would need to be clo sed at the end of operation. Surface impoundments are even more limited in that the whole impoundment operates until closure. Thus the entire surface area of the impoundment would still be under water until closure begins. In some CCR surface impoundments, this could mean that hundreds of acres would need to be closed in just 210 days after placement of the last CCR. This would be impossible. In fact some large impoundments could take several years to be dewatered to the point where a cover could be install ed. Then, depending where the impoundment is located, and the availability of cover materials, it could take longer than the 210 days to deliver and place the required cap system.

EPGA believes that a more appropriate approach for closure would be to requ ire closure of CCR landfills and surface impoundments consistent with a closure plan that has either been approved by a state or developed and certified by a registered professional engineer or hydrologist. The closure plan would include a reasonable sched ule for completion, and would account for the unique closure requirements of CCR disposal landfills and impoundments

.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08865

- 7 Organization 1 : Geosyntec Consultants (4TT) Commenter Type: Other Company

Comment Excerpt Text:
Subtitle D Closure Period The proposed regulations require 30

- and 180

- day deadlines for beginning and completing
closure. These deadlines must be more flexible for surface impoundments because their closure will require dewatering of the pond, and rapid dewatering can result in slope instability.

We strongly recommend that the closure period be determined on a case

- by

- case basis after evaluation by a licensed professional engineer and be defined in the closure plan on the basis of
that evaluation

.
EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble.68

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09274

- 14 Organization 1 : RRI Energy Inc. (4HH) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.1

Comment Excerpt Text: A. Timeframe for Closure of Surface Impoundments and Landfills

Under both the Subtitle D and Subtitle D Prime options, there are certain proposed design and siting standards that e xisting facilities must meet, or they will have to close. Even though in the Subtitle D Prime option, where existing surface impoundments could continue to operate for their remaining useful life,

RRI believes there will be some existing landfills and sur face impoundments that cannot meet these newly proposed requirements and will be forced to close. The proposed time table for closure of these facilities is not realistic, and should be revised accordingly.

RRI believes that a more appropriate approach fo r closure would be to require closure of CCR landfills and surface impoundments consistent with a closure plan that has either been approved by a state or developed and certified by a registered professional engineer or geologist. The closure plan would in clude a reasonable schedule for completion, and would account for the unique closure requirements of CCR disposal landfills and impoundments

.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 24 Organization 1 : Virginia Department of Environmental Quality (4UU) Commenter Type: State Government

Comment Excerpt Text: Section 257.100 Proposed Rule (c) At closure, the owner or operator of a surface impoundment must: (1) Eliminate free liquids by removing liquid wastes or solidifying the remaining wastes and waste residues; (2) Stabilize remaining wastes to a bearing capacity sufficient to support the final cover; and (3) Cover the surface impoundment with a final cover d esigned and constructed to: (i) provide long

- term minimization of the migration of liquids through the closed impoundment; (ii) Function with minimum maintenance; and (iii) Promote drainage and minimize erosion or abrasion of the cover; (iv) Accommodate se ttling and subsidence so that the cover's integrity is maintained; and (v) Have a final cover system that meets the requirements of subsection (d).

Paragraph (d) of this section prescribes one cover design option and paragraph (e) authorizes an
alternativ e final cover design. Therefore we request that paragraph (c) (v) be modified as follows (changes requested are underlined):69

(v) Have a final cover system that meets the requirements of subsection (d) or (e).

EPA Response : The Agency agrees with the commenter, though EPA has reorganized the final regulatory text for greater clarity. For additional information, see Unit VI. M.3 of the preamble and §257.102(d).

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 22 Organization 1 : P rogress Energy, Inc. (4II) Commenter Type: Electric Utility Company
Other Sections: 4.4.8.1

Comment Excerpt Text: Compliance with EPA’s proposed timeframe for closure of surface impoundments and landfills is impossible

A significant flaw in the Subtitle D proposal is the unrealistic timetable for the closure of CCR surface impoundments and landfills that are unable to meet the proposed design and operating standards. Even under the Subtitle D Prime option, where CCR surface impoundments operating
in an e nvironmentally sound manner could continue to operate, there undoubtedly will be a significant number of impoundments that will have to close. Therefore, a more realistic and achievable closure process is necessary under this option.

The Subtitle D option would require that existing landfills and surface impoundments meet certain location restrictions or performance criteria ( e.g. , not be located in unstable areas or have engineering measures incorporated into the design to ensure that the integrity of the structural components will not be disrupted if located in unstable areas). Further, within five years of the effective date of the Subtitle D rules, existing surface impoundments would be required to be dredged and to install a composite liner and leachat e collection system, or close. Because these obligations may be impossible to fulfill and would impose significant operational costs on owners/operators, Progress Energy agrees with EPA that “many surface impoundments may close as a result of these require ments.” Likewise, a number of landfills may also close if they are unable to comply with the “unstable areas” location restriction. Many of these disposal units will need to close pursuant to the Subtitle D closure framework. The proposed timetables for

ac tually closing these landfills and surface impoundments, however, are unrealistic, and many facilities will be physically incapable of meeting these schedules.

In particular, EPA proposes to require disposal units that cannot meet the location restriction s or associated operating standards to close within five years of the effective date of the finalized regulations, which may be extended by an additional two years if the owner or operator can make a particular demonstration that there exists a lack of alt ernative disposal capacity and the unit poses no immediate threats to human health or the environment. Landfills typically close each component cell when the cell reaches its disposal capacity so that many cells have already
been “closed” when the landfill begins final closure. Surface impoundments, on the other hand, must be entirely dewatered before closure can begin for any portion of the impoundment.70

Given the disparity in the sizes of these units, the length of time necessary to dewater impoundments a nd the need for many of these units to be closed when the rules come into effect, Progress Energy strongly recommends that EPA not establish a specific timeframe for closure. Instead, the Company urges EPA to require utilities to close CCR surface impoundm ents and landfills consistent with a closure plan approved by a state, or developed and certified by a registered professional. The establishment of a closure plan, with set schedules, is the most effective method to account for the many variables associat ed with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide EPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facilities to comply with whol ly unrealistic closure schedules.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09971

- 6 Organization 1 : PPL Services Corporation (4VV) Commenter Type: Electric Utility Company
Other Sections: 4.4.3

Comment Excerpt Text: PPL PA Generation has successfully completed such a transformation of part of a former surface impoundment to a landfill at its Brunner Island facility. Without the ability to do such a conversion, Brunner Isla nd would not have had any land to develop its residual waste landfill and would have had to either purchase offsite greenfield land or use a commercial landfill. Neither of those options would provide any environmental or cost benefit, while using the
exis ting “brownfield” closed surface impoundment does provide both environmental and cost
benefits.

EPA Response : EPA responds to comments regarding “overfills” and related issues in Comment Response Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11342_P

- 055

- 3 Organization 1 : CONSOL Energy, Inc. Commenter Type: Other Company
Other Sections: 4.1.3

Comment Excerpt Text: Our third concern is EPA's proposed Subtitle D regulations to require closure of existing impoundments or retrofitting of liners in existing impoundments as a condition of their continued use. Many existing impounds have significant remaining useful life, but already contain significant volumes of CCR that would make it environmentally and economically infeasi ble to remove the CCR to install a liner. EPA's proposed D Prime option would allow continued use of existing impoundments for the remainder of their useful lives. The D Prime option will enable a
smoother transition to new facilities and reduce disturbanc e of green field areas.71

EPA Response : EPA responds to this comment in the preamble to the final rule.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11516_L

- 129

- 6 Organization 1 : Kentucky Resources Council Commenter Type: Advocacy Group

Comment Excerpt Text: Finally, the use of embankment impoundments for management of coal waste slurries should be eliminated in favor of dry ash and gypsum management, and existing slurry impoundments closed unless it can be demonstrated that they were designed, engineered and constructed according to sound engineering practice.

EPA Response : EPA responds to this comment in the preamble to the final rule.

Section 4.4.8.2.1

- Time to initiate closure

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0052

- 1 Organization 1 : Pennsylvania De partment of Environmental Protection (DEP) [5BB] Commenter Type: State Government
Classification: NODA2 Substantive

Comment Excerpt Text: Pennsylvania's residual waste regulations include standards for closure of landfills and surface impoundments, regardless of the size of the facility. DEP can support time frames for initiating closure provided a rebuttable presumption concept similar to what is described in the NODA is included to allow for a longer time period to be established. That rebuttable p resumption should be based upon site

- specific considerations and be protective of human health and the
environment

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0053

- 2 Organization 1 : Seminole Electric Cooperative, Inc. (SECI) [5X] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: SECI agrees with EPA that the requirement to close facilities that have not received CCRs in over one year wi ll be problematic, pa r ticularly given EPA’s broad definition of surface impoundment. Currently, SECI utilizes two impoundments for dewatering of air pre

- heater wash water. This water is only cleaned out twice per year. SECI utilizes one impoundment for thi s process but keeps another impoundment in reserve in case the impoundment capacity is exceeded. This reserve impoundment often goes unused for multiple years but is necessary to ensure safe operation of our active impoundment. Requiring closure of impound ments that have not received ash within a year would force us to close this impoundment and could lead to integrity issues on our active impoundment.72

Additionally, SECI utilizes an on

- site landfill to dispose of sludge and ash. While we are actively using this landfill at this time, SECI could foresee a situation in which economic or operational issues force SECI to stop using this landfill for an extended period. Since the exterior of the landfill is covered In a layer of soil and vegetation and all runof f is collected to prevent release, forcing SECI to close the landfill during inactive periods would represent an unnecessary
financial burden with no health or environmental benefits

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamb le. In addition, the Agency considered the examples cited in the comments during development of the time

frames for closure.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 4 Organization 1 : Southern Company [5DD] Commenter Type: Electric Utility Company
Clas sification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: Southern Company appreciates the opportunity to further comment to EPA regarding the technical issues surrounding closures of surface impoundments and landfills. In the 2010 CCR proposed rule, EPA relied heavily on the existing regulations directed to soli d waste landfills (i.e., the municipal solid waste landfill regulations in 40 CFR Part 258 [Footnote 15: See 75 Fed. Reg. at 35193.] for proposing timeframes for initiating and completing closure of surface impoundments that manage CCRs. Since existing sol id waste regulations for landfills prohibit free liquids, it was obvious that application of regulations for dry landfills would not accommodate surface impoundments that, in many cases, hold thousands of gallons of liquid. As
seen in the multitude of comm ents submitted to EPA in response to this very aspect related to closure of surface impoundments holding free liquids, EPA has recognized that it “did not adequately account for the complexities inherent in electric generating facility operations, and
the different characteristics of CCR surface impoundments” in the respect to closure. [Footnote 16: 78 Fed. Reg. at 46944.]

EPA must recognize that a one

- size

- fits

- all timeframe or program will not adequately accommodate each and every unit managing CCRs; sit e

- specific characteristics must be taken
into account. A site

- specific closure plan should be developed individually for each facility in conjunction with the state regulator and an approved registered professional engineer. EPA must not apply confined tim eframes for initiating and completing closure to any approach because there are a multitude of issues and complexities that can extend the time necessary for closure at any given site. In this NODA, EPA has presented options to allow for closure timeframes to be extended under certain rebuttable presumptions, which Southern Company generally supports
with certain additional recommendations

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.73

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 5 Organization 1 : Southern Company [5DD] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: i. Options EPA Considers for Initiating Closure Must Include the Intended Use of The CCR Management Unit

In EPA’s 2010 CCR proposed rule, initiation of closure of CCR management units would be required within 30 days of either (1) the known final receipt of waste or (2) no later than one year after the most recent receipt of waste, based on existing municipal solid waste regulations. In this section of the NODA, the Agency discusses the difficulties associated with addressing “inactive” or abandoned units and has attempted to address those units in its NODA. Since t he proposal, EPA has been made aware, however, of several examples of routine and legitimate circumstances in which disposal units would not receive CCRs for longer than one year, even though the facility intends to continue to use the disposal unit. The N ODA then cites multiple examples, including Allegheny Energy’s R. Paul Smith Station, AEP’s John E. Amos Plant, and Xcel Energy’s Valmont Station where sluicing alternates between two separate impoundments, removing the ash from one facility when it become s full while the other is utilized. While these are appropriate examples of varying uses, it is not inclusive of all of the scenarios applicable to a CCR management unit.

Many impoundments are not disposal units, but rather process and treatment ponds use d for decanting of the ash prior to its disposal in a landfill. EPA should not put constraints on such operations, as the intent of the proposed rule was to address disposal facilities, and the CCR rule should not infringe upon such operational activities. If the final CCR rule restricts or disallows the use of sedimentation ponds as part of a wet ash transport system, appreciable additional costs may be incurred compared to most of the options presented in the proposed ELG, and especially for handling of b ottom ash.

EPA also references generating units that may be placed into long

- term reserve status or temporarily idled in response to low demand. As such, surface impoundments may not be used for extended periods of time. Therefore, it is important for EPA to consider the likelihood that these CCR management facilities would still be of future use once the generating unit resumes operations.

Surface impoundments serve more functions at a coal

- fired power plant beyond managing CCRs. The impoundments also ma nage low volume wastes (wastewaters) as a wastewater treatment system. If EPA were to dismiss any of these uses without considering the consequences to the facility for the other uses, the impact to operations would be significant, and it also disregards t he original intent of the management unit itself. It is vital for EPA to prescribe closure only when the intended uses of the unit have ceased, and not based on when the unit last receives CCRs. In certain cases, a unit may receive the last known amount of CCRs but remains necessary for treatment of “legacy wastewaters” afforded by the proposed ELGs, or to become operational74

again in service of units that resume operations after being temporarily idled.

Because of these different uses noted above, Southern Company supports the ideas presented by EPA for allowing additional time to initiate closure of surface impoundments. EPA proposes two options for allowing more time for temporarily idled units to initiate closure. First, EPA states that it could possibly establish a rebuttable presumption so that if the impoundment has not received waste within a particular time frame, the disposal unit would become inactive and closure must begin within a specified time. EPA lists as possible examples a requirement to
in itiate closure if the unit is inactive for a period of 18 months to 2 years unless the facility could document certain findings, such as any of the following situations:

(1) A written demonstration by the owner or operator documenting that a CCR waste dis posal unit is dedicated to a temporarily idled generating unit and there is a reasonable likelihood CCR disposal will begin after the generating unit resumes operation; (2) a written demonstration by the owner or operator documenting that the disposal unit is dedicated to an electric generating unit designed to burn coal and another fuel, and that the reason the disposal unit has not received CCR within a specified time is that a non

- coal fuel has been used and that there is a reasonable
likelihood that CCR s will be disposed of in the unit once coal is burned again; and (3) a written demonstration by the owner or operator documenting that normal plant operations include periods when the disposal unit does not receive CCRs and there is a reasonable likelihood CCR disposal operations will resume in the future.

Second, EPA proposes a rebuttable presumption that would allow the unit a maximum period of time (i.e., 5 years) for which the unit may remain idle.

Southern Company agrees that the scenarios outlined b y EPA are reasonable and occur on a regular basis within the electric utility business, and such exceptions to time frames for closure should be considered and accounted for in the final rule. Given the variability in demand (dependent upon several factors , such as economic downturn resulting in lower demand, fluctuating fuels prices for natural gas, or natural disasters), we support and recommend a minimum 2 year period to serve as the basis for such exceptions, with the opportunity to show
reasonable caus e why exceptions for longer time periods should be considered and granted. The process for requesting such extensions/exceptions should be well established, readily available, straightforward and easy to apply for.

Also, requiring a utility to initiate cl osure within 30 days of the final known receipt of CCRs is likely to be problematic for some units depending on the timing and compliance with the Mercury and Air Toxics Standards (“MATS”), the ELGs and the CCR rules. Utilities, such as Southern Company, m ay still be assessing potential strategies to comply with multiple simultaneous environmental rules and will continue to evaluate varying options for future compliance and a diverse fuel portfolio. Therefore, it may be difficult for one utility to predict the outlook of their fuel mix and CCR management needs. And, as EPA is already aware, in a municipal solid waste landfill, closure is associated with reaching ultimate disposal capacity, a condition that is envisioned in the closure plan for that facility. Unlike municipal solid waste landfills, the closure of a CCR surface impoundment may now occur at an earlier time than originally intended for a variety of reasons besides reaching ultimate disposal capacity, including75

the compliance with recent and upcom ing air, water and solid waste regulations. As a result, existing CCR surface impoundments are not likely to resemble the conditions envisioned in any previously prepared closure plan. The CCR rule should be coordinated with both the expected MATS complian ce deadlines and the potential ELG rules to ensure that any requirement to initiate pond closures allows sufficient time for the utility to prepare or revisit detailed closure plans before closure activities are required to begin. A time period of at least 2 years to gather data and develop detailed closure plans should be allowed, excluding the time for state review and approval

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency discusses the basis for ti ming of closure plan development (i.e., 18 months following publication of the final rule) in Unit VI.M.1 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 4 Organization 1 : Commonwealth of Kentucky [5AA] Commenter Type: State Government
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: The Commonwealth is aware of one set of four ponds where two are use simultaneously. The impoundments are at American Electric Power’s Big Sandy plant.

The Commonwealth pr efers the “rebuttable presumption” where the unit has not received waste within a particular time frame, the disposal unit would be considered inactive and unit closure must begin within a specified time unless the facility owner could document certain fin dings.

On the timeframe, the Commonwealth notes that the ELG proposal is for zero

- discharge requiring dry handling after each plant’s NPDES permit renewal during the cycle beginning July
1. 2017. The timeframe could be about 3

- 8 years from the effective d ate (or 4

- 9 years from today). The agency should coordinate the CCR disposal rule with the ELG proposal regarding time to close surface impoundments. Failure to coordinate could waste extra resources for little
reason other than to force the start of closu re earlier than the ELG rule affords. For example, say closure must begin within two years of the CCR disposal rule effective date and complete within three, for a total of five when dry handling for a particular NPDES permit renewal is not due for
another seven years. This would in essence override the ELG rule and require dry

- handling two years earlier

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency notes that the AEP’s Big Sandy example cited by the commenter is another (and new) example of alternating use of CCR surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 12 Organization 1 : Utility Solid Waste Activities Group (USWAG) [5A] Commenter Type: Trade Association76

Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: Based on the discussion above, USWAG has prepared suggested regulatory text outlining when a CCR landfill or surface impoundment should initiate closure and the process for determining
wh en a unit should complete closure. In circumstances where the so

- called “tiered approach” is
used

— i.e., when a unit is not closing pursuant to the state

- approved closure process described
above

— we have suggested more realistic tiered time frames based on m ember input and closure plans (attached hereto) demonstrating that EPA’s suggested time frames are not realistic.

We also understand that EPA’s suggested tiered time frames were drawn from the suggestions of a commenter on the proposed CCR rule. [Footnote 13: See 78 Fed. Reg. at 46946, n. 10, referencing docket items EPA

- HQ

- RCRA

- 2009

- 0640

- 6424 and EPAHQ

- RCRA

- 2009

- 0640

- 6832.] Those comments, however, stated that the proposed time frames should not commence for a surface impoundment until it has been dewate red. However, EPA’s proposed time frames apparently would begin to run before dewatering an impoundment is complete, which is inconsistent with the comments suggesting the tiered approach. To correct this oversight, USWAG’s proposed regulatory text lengthe ns the tiered time frames to allow a reasonable time for dewatering that will be sufficient in some (but by no means all) cases.

In addition, USWAG’s proposed time frames run from date when all necessary state and local approvals have been obtained. As ex plained above, in some states, the process of obtaining approvals, which must be completed before onsite closure work can commence, can be a lengthy and unpredictable process. Closure plans are generally subject to state review and approval. Closure plans developed during the preconstruction permitting phase of an impoundment or landfill may not be relevant years later when an impoundment or landfill commences closure due to changes in construction practices, regulatory requirements, and the actual conditio n of the unit. Closure activities at an impoundment or landfill cannot begin until all necessary state and local authorizations are issued. In some cases, this process involves public notice and comment or an opportunity for persons to challenge approvals through citizen suits, both of which may substantially extend the time needed to obtain approval. A utility can initiate the administrative and regulatory process of closing an impoundment or landfill in a timely manner, but it has no
control over when tha t process is complete and site work can begin. Accordingly, USWAG’s proposed tiered time frames do not start until all approvals necessary to commence closure have been obtained. [Footnote 14: To be clear, if the closure is subject to a “state

- approved clo sure process,” then a utility should be able to demonstrate compliance with the CCR rule by complying with the state approved closure process rather than the tiered time frames in the suggested regulatory text.]

Third, there is great inherent uncertainty in basing CCR surface impoundment or landfill closure time frames on impoundment acreage. Acreage is a grossly imprecise metric to determine probable unit closure times, as total volume of a particular unit and many other factors can
dictate the time neede d for completing closure. Acreages also can vary greatly, and it is difficult to capture meaningful size differences within tiers. For example, First Energy’s 950

- acre Little Blue Run Disposal Area surface impoundment (which has a 15

- year projected closure period)77

falls in the same tier as a 75

- acre impoundment. First Energy, Major Permit Modification Application (Mar. 29, 2013) (Attachment M). For obvious reasons, the challenges and practical time frames for closing such differently sized impoundments are extremely different.

Finally, the “tiered” approach must allow for a facility to readily deviate from the presumptive time frames for closure when necessary to properly and safely close the unit. Furthermore, this
demonstration should not be a one

- time un changeable event. Uncertainty and unknown factors beyond a utility’s control often substantially affect work on an impoundment or landfill closure project once it has begun. Therefore, owners or operators undertaking closure should be able to readily revis e their determinations if circumstances change.

Below is suggested regulatory text for outlining the conditions for initiating closure and the processes for ensuring the completion of closure.

SUGGESTED TEXT FOR INITIATING CCR UNIT CLOSURE:

40 C.F.R. § 257.100 Closure Criteria

. . . .

(j) (1) Subject to paragraph (2) of this subsection, the owner or operator of a CCR landfill or surface impoundment must commence closure activities thirty days after the final known receipt of a waste the unit is permitt ed to manage or within thirty days after the conclusion of the functions authorized for such surface impoundment or landfill as set forth in a state

- approved operating plan or other state authorization, whichever is later.

(2) If the CCR landfill or surfa ce impoundment has remaining capacity and there is a reasonable likelihood that the unit will resume managing a waste, the unit must commence closure activities within two years after the most recent receipt of waste. This period may be extended in two yea r increments provided the owner or operator demonstrates in a written certification to the facility’s operating record and relevant state agency, at expiration of the initial two year period and every subsequent two year period as applicable, that the owne r or operator has a reasonable belief that the unit will resume managing a waste.

SUGGESTED TEXT FOR COMPLETING CCR UNIT CLOSURE:

40 C.F.R. § 257.100 Closure Criteria

. . . .

(k) The owner or operator of the CCR landfill or surface impoundment must com plete closure
activities

(1) As authorized by state authorities in accordance with a state

- approved closure process that is included in the facility’s operating record, or78

(2) In accordance with a closure plan certified by an independent professional eng ineer that is included in the facility’s operating record and provided to the relevant agency, and after obtaining all necessary state and local authorizations necessary to commence closure operations,
as follows:

(A) For an impoundment with an area less than 20 acres, within three years,

(B) For an impoundment with an area of 20 acres or more acres but less than 50 acres, within five years,

(C) For an impoundment with an area of 50 acres or more acres but less than 75 acres, within eight years,

(D) For an impoundment with an area of 75 acres or more, within ten years,

(E) For a landfill, within 180 days, or

(F) At a later date if the owner or operator demonstrates in a written submission to the facility’s operating record and relevant state agency and certified by an independent professional engineer that the time frames in paragraphs (k)(2)(A) to (k)(2)(E) are not feasible to complete closure activities as set forth in the closure plan.

. . . .

(n) This section shall not apply to a CCR surface impou ndment that ceases to receive waste in preparation for being converted into a landfill as authorized by a state authority

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 7 Organization 1 : Utility Solid Waste Activities Group (USWAG) [5A] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: 1. Closure Should Not Be Initiated for Idled Units if the Units Are Expected to Receive
Additional W astes in the Future

Utilities use surface impoundments and landfills for different legitimate uses other than the management of CCR. The final CCR rule should take these various legitimate use scenarios into account in prescribing when closure must be ini tiated. In the 2010 CCR proposal, EPA proposed that closure activities should commence within 30 days of an impoundment’s last known receipt of CCR or no later than one year after the most recent receipt of waste if the unit has remaining capacity and ther e is a likelihood that it would receive additional CCR. In this NODA, the Agency appropriately recognizes that “there can be legitimate operational reasons to maintain waste disposal units even though there may be extended periods where CCRs are not placed in79

the unit.” 78 Fed. Reg. at 46945. EPA proposes two approaches for when closure must commence for temporarily idled units. First, the Agency proposes creating a rebuttable presumption that an impoundment must initiate closure within a certain time perio d (e.g., 18 to 24 months) unless the utility can demonstrate a legitimate purpose for the idled period and “that there is a reasonable likelihood that CCRs will be disposed in the waste disposal unit” at a later time. Id. Second, EPA proposed that the rebu ttable presumption approach be subject to a maximum period of time (e.g., 5 years) for which a unit may remain idle. Id.

Of the two proposed options, a modified version of the first rebuttable presumption approach is clearly the most reasonable option, no t to mention more consistent with the Agency’s public views regarding the operation of impoundments. The Agency provides a list of examples in which a utility could demonstrate that an impoundment is only temporarily idled, including when
a coal

- fired gene rating unit is temporarily idled or temporarily switches to an alternative fuel it is designed to burn, or when a facility alternates between impoundments in the normal course of operation. EPA noticed three documents that exemplify legitimate circumstance s in which an impoundment may be temporarily idled: (1) Assessment of Dam Safety Coal Combustion Surface Impoundments (Task 3) Final Report, Allegheny Energy, R. Paul Smith Station, Williamsport, Maryland; (2) Coal Combustion Waste Impoundment Task 3

– Dam A ssessment Report, John E. Amos Plant (Site 26), Bottom Ash Dam, American Electric Power, St. Albans, West Virginia; and (3) Response to Request for Information Relating to Surface Impoundments Under 104(e) of the Comprehensive Environmental Response, Compe nsation, and Liability Act, 42 U.S.C. 9604(e). It is appropriate to rely on these documents in this rulemaking because they demonstrate that it is not uncommon for a CCR management unit to be idled temporarily for legitimate operational reasons.

EPA sugge sts that the examples it cites of legitimate reasons to idle a CCR management unit are not exhaustive. 78 Fed. Reg. 46944. Here too, the Agency is correct. There are, of course, other reasons to idle an impoundment or landfill. For example, USWAG members h ave been able to divert all of their CCR to beneficial uses in some instances. [Footnote 8: In the case of CCR diverted from a surface impoundment, it is likely that this impoundment would continue to manage other waste streams, such as storm water and low volume wastes. As discussed further in the following section, a surface impoundment or landfill that temporarily or permanently ceases to receive CCR, but continues to manage other waste streams it is permitted to manage, should not be subject to closure. These units should remain operational to continue managing other permitted wastes.] In a few cases, currently generated CCR has been insufficient to meet demand for beneficial use, and members have withdrawn CCR from existing onsite landfills or impoundme nts to supplement the currently generated CCR for purposes of beneficial use. These circumstances result in the idling of the onsite CCR management or disposal units. Due to variable demand for CCR, however, a utility cannot assume that it will be able to divert its CCR for beneficial uses indefinitely. It must retain sufficient standby capacity at its facility to manage its CCR if beneficial use demand slackens. If the facility were forced to initiate closure of its impoundment or landfill within a certain time period of diverting CCR to beneficial uses, it likely would have to cease this practice because a utility cannot rely on beneficial use as its only means of managing CCR.

Given the various scenarios in which a utility may elect to idle a CCR managem ent unit, it is80

important that the final rule clearly provides that the initiation of a management unit’s closure may be postponed if there is a legitimate purpose to do so and the utility has a reasonable belief that the impoundment or landfill may be nee ded to manage CCR in the future. USWAG recommends proposed regulatory text below for achieving this objective. USWAG also believes that the text should be drafted broadly so that it does not restrict legitimate impoundment or landfill management scenarios, including the circumstances described above, and accounts for variations in state regulatory programs. USWAG notes, of course, that during any period in which the unit is “idle” in the sense that it is not receiving CCR (and/or other wastes), it would
sti ll be operating under the CCR rule and would remain subject to all applicable groundwater monitoring, corrective action, and other related requirements.

Importantly, it is not necessary or practical to set an outer limit on the length of time an impoundme nt or landfill can remain idle. Of the three examples cited by EPA and the fourth noted by USWAG, the only example in which the idle period will be for a more or less known duration is in the case of utilities that alternate impoundments. In the case of a utility plant that is temporarily idled or switched to an alternate fuel it is designed to burn, or a facility that is diverting CCR to beneficial use, a utility will not be able to predict with any degree of certainty how long an impoundment or landfill w ill be idled. [Footnote 9: This issue is amplified for utilities that alternate between two CCR management units on a regular cycle. If the active unit becomes idled for any reason, then the length of time the non

- active unit is idled will be
extended much further. For example, if two impoundments are rotated on a two

- year cycle, and the active impoundment becomes idled for one year because a beneficial use contract allows the diversion of all CCR for that time, then the alternative impoundment will have be en idled for at least three years before it resumes receipt of CCR.] It is conceivable that in these
circumstances

— especially where CCR is diverted to beneficial use

— an impoundment or landfill legitimately could remain idled for years.

USWAG’s proposed re gulatory text for temporarily idled CCR landfills and surface impoundments units is set forth below in section V.C. USWAG’s proposed § 257.100(j)(1) applies, in part, to CCR units for which a state

- approved operating plan contemplates periods
when the unit will be idled or used for alternative purposes. For example, if the state

- approved operating plan reflects that a CCR unit is designed to be used on an alternating basis with another onsite unit, then this document should be sufficient to demonstrate that the unit is operating as intended even though it may be idled for a long time period.

For idling scenarios not covered by a state

- approved operating plan, USWAG has drafted a proposed § 257.100(j)(2) that embodies EPA’s proposed rebuttable presumption ap proach. This section would provide that a CCR landfill or surface impoundment that has remaining capacity could remain idle for a period of two years if there is a “reasonable likelihood” that the unit will resume managing a waste it is permitted to manage (either CCR or other non

- CCR wastes for which the unit is authorized to receive). To remain idle beyond this two

- year period, the owner or operator would have to submit a written certification to the operating record and state authorities demonstrating th e basis for the reasonable likelihood that waste management activities will resume. [Footnote 10: The NODA proposes that certain documents, including certifications for idled periods, must be publicly posted to the internet. USWAG members have expressed co ncerns over this proposal because such information could present security issues and81

may divulge confidential business information (which is a particular concern in states with a competitive energy market). We propose that EPA refrain from mandating that a ny certifications required under this rule be posted to the internet. If EPA does require that these documents be posted, however, USWAG requests that utilities be allowed to redact any security

- sensitive or confidential business information.] To address t he Agency’s concern about indefinite idling periods that are intended only to delay closure, USWAG proposes that this certification be resubmitted every two years.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 8 Organization 1 : Utility Solid Waste Activities Group (USWAG) [5A] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: EPA’s proposed closure period would require that a CCR impoundment or landfill initiate closure in all cases if it permanently ceases to receive CCR. This proposal appears to be based on the erroneous assumption that CCR units that permanently cease to receive CCR will stop functioning as a management or dispo sal unit. This is not the case for many landfills and surface impoundments which serve other waste management or water treatment functions in addition to managing CCR. A landfill or impoundment that ceases to receive CCR can and should be
allowed to contin ue operating to manage other permitted waste streams. Accordingly, the period to commence closure for a landfill or impoundment that can continue to accept other waste streams should be its last known receipt of any regulated waste stream, such as low volu me
wastewaters or storm water.

This issue is particularly important with respect to the function CCR impoundments serve in accepting other non

- CCR wastewaters. CCR impoundments often serve a critical wastewater treatment function at a facility by receivin g and accepting water from other sources and power plant processes, including storm water runoff and other low volume wastes. See e.g., NRG, Keystone Generating Station Gypsum Settling Basin Application, App’x L Closure Plan (noting that “settling basin wi ll act as a storm water pond during operation”) (Attachment D). So long as these impoundments are continuing to accept any waste streams for which they are permitted, utilities should be able to continue operating them irrespective of whether they continue to accept CCR. In these circumstances too, however, USWAG recognizes that such impoundments would remain subject to ongoing CCR groundwater monitoring and related requirements.

As EPA is well aware, there is a possibility that utilities will be compelled to stop managing certain CCR transport waters in surface impoundments due to the anticipated revisions to the utility ELG rule. Several options in the ELG proposal include zero discharge standards for
certain CCR

- related wastes, such as fly ash transport water. If adopted, these options would effectively require utilities to stop managing the CCR related wastes covered by the zero discharge standards in impoundments with a permitted outfall. The ELG proposal, however, expressly contemplates these impoundme nts remaining open to continue managing legacy CCR82

transport water and other regulated waste streams.

RCRA Section 1006(b) directs EPA to harmonize its solid waste regulations with the requirements of the Clean Water Act. Consistent with this statutory di rective and to coordinate the ELG and CCR rules, EPA should eliminate the concept in the CCR proposal that the time period to commence closure of a CCR unit is automatically triggered when it ceases to receive CCR. The proposed ELG rule is designed to allo w these units to remain open to accept other wastes, and the CCR rule should not be contradictory. Whether or not an impoundment should initiate closure under the CCR rule should be predicated on environmental factors underlying the CCR rule, not because a n unrelated discharge prohibition under the ELG rule results in the pond no longer receiving CCR.

Utilities that convert from coal to other fuel sources will face a similar dilemma under the CCR rule unless it is revised. These facilities will no longer b e generating CCR but will have a continuing need for wastewater management in their impoundment systems under the ELG rule. If they are compelled to close existing surface impoundments based on the cessation of receipt of CCR in the units, the management s trategies under the ELG for other non

- CCR wastewaters will be undermined. Instead, facilities will have to find alternative wastewater treatment options, including constructing new wastewater treatment facilities and waste management units (assuming there is even space to do so). Therefore, to ensure harmonization between the two rules, impoundments that formerly managed CCR but continue to accept other regulated waste streams should be able to continue operating so long as they are providing a necessary fu nction at the facility.

For these reasons, USWAG requests that EPA provide in the final CCR rule that the triggering event for any time period for a landfill or surface impoundment to commence closure is when a unit ceases to receive any waste stream for which it is permitted to manage (again, during this time period, the unit would remain subject to any applicable CCR groundwater monitoring and corrective action requirements). USWAG’s proposed draft § 257.100(j)(1) clarifies that one of the potential trig gering events for the closure of a landfill or surface impoundment is when it ceases to receive any waste (in addition to CCR) it is permitted to manage

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- R CRA

- 2012

- 0028

- 0060

- 9 Organization 1 : Utility Solid Waste Activities Group (USWAG) Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: Some state programs provide a means for facilities to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. We expect that this practice may become more common after the implementation of the ELG rule. Units t hat are undergoing conversion generally must cease receiving CCR material, at least temporarily. EPA should clarify that this temporary cessation of CCR receipt does not trigger closure requirements. After these impoundments are appropriately converted, EP A should also specifically identify these83

facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for existing surface impoundments, including potential c losure requirements. This will authorize the continued operation of these existing CCR landfills, regulate these units pursuant to the appropriate applicable standards, and not require utilities to acquire land for the construction of new landfills.

USWAG has included a proposed draft § 257.100(n) which would exclude any unit that is in process of being converted from a CCR surface impoundment to a landfill from the closure requirements

.

EPA Response : EPA responds to comments regarding “overfills” and rel ated issues in Comment Response Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 2 Organization 1 : Florida Electric Power Coordinating Group Inc. (FCG) [5Q] Commenter Type: Trade Association
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: As EPA recognized, the closure requirements for CCR surface impoundments do not account for the complexities of operating CCR surface impoundments and coal

- fired powered plants in general. See 78 Fed. Reg. at 46944. The FCG supports revisions to the Proposed Rules to extend the timeframes for initiating and completing closure of CCR surface impoundments and landfills. [Footnote 2: While the NODA seemingly seeks comment on the closure timeframes for CCR surface impoundment s, the FCG’s comments are equally applicable to the closure timeframes for CCR landfills.] Such revisions should provide flexibility for states and facilities to factor in regional variances and site

- specific conditions. The state of Florida has extensive experience regulating the operation and closure of CCR surface impoundments and CCR landfills under power plant site certification orders and conditions, and NPDES permits. Notably, there have been no reported off

- site impacts to the environment associated with the operation of CCR surface impoundments or landfills in Florida. The state of Florida, therefore, is well

- equipped to implement a CCR regulatory program that is protective of human health and the environment.

At the outset, it is worth noting that the proposed definition of “CCR surface impoundment” is overly broad and may be interpreted to include numerous facilities and structures that are critical to the management of various process water and wastewater streams that are generated throughout a c oal

- fired power plant. Such facilities and structures are more appropriately governed by permits issued pursuant to other regulatory authorities, such as the Clean Water Act (“CW A”). As defined, a CCR surface impoundment may be interpreted to include pond s and impoundments that receive numerous industrial wastewaters that are routinely generated within a power plant facility, such as boiler washes, cooling water, cooling water blowdown, and flue gas desulfurization (“FGD”) blowdown. Additionally, the propo sed definition of CCR surface impoundment may include ponds and impoundments that receive process and wastewaters that are reused in air pollution control systems. These wastewaters contain only de minimis amounts of CCRs and are wholly different from the sluiced CCRs that are the focus of the surface84

impoundment provisions in the Proposed Rules. [Footnote 3: For a full discussion of the ramifications of EPA’s proposed definition of CCR Surface Impoundment, see FCG’s comments on the Proposed Rules, Docket N o. EPA

- HQ

- RCRA

- 2009

- 0640, available at htto:llwww.regulations.gov/#!documentDetail:D=EPA

- HO

- RCRA

- 2009

- 0640

- 10498.]

EPA Response : In regard to timeframes to initiate and complete closure of a CCR unit, EPA

addresses these issues in Unit VI. M .4 of the prea mble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 3 Organization 1 : Florida Electric Power Coordinating Group Inc. (FCG) [5Q] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: In the context of closure timeframes, t he expansive definition of CCR surface impoundments may compel the premature closure of various wastewater management units that serve functions beyond managing CCRs. For example, one FCG member utilizes two impoundments for dewatering of air pre

- heater wa sh water. One impoundment is used primarily for this process, but a second impoundment is kept in reserve in case the first impoundment’s capacity is exceeded. The reserve impoundment often goes unused for multiple years, but is necessary to ensure safe

op eration of the active impoundment. In this example, requiring closure of surface impoundments that have not received CCRs within a 12 month period may require closure of the reserve impoundment and could compromise the ability of the facility to respond to unexpected contingencies. FCG members can foresee other situations where economic or operational issues, such as fuel portfolio diversification, may require a CCR surface impoundment or landfill to be inactive for an extended period of time. Accordingly, the FCG supports revising the Proposed Rules to provide flexibility to address these situations.

The FCG favors a site

- specific approach to closure under state oversight. This would provide flexibility to address regional and site

- specific factors affecti ng the management of CCRs and related wastewaters. Of the two options presented by EPA, however, the FCG prefers the rebuttable presumption that closure of a CCR impoundment or landfill should be initiated within a certain time period, 24 months at a minim um, after the last receipt of CCRs, unless the utility can demonstrate a “legitimate purpose” for the period of time during which it is not receiving CCRs. 78 Fed. Reg. at 46945. The term “legitimate purpose” should be defined broadly so as to provide suff

icient operational flexibility in the event that a CCR surface impoundment stops receiving CCRs for a period of time. It must also account for the operational use of an impoundment beyond management of CCRs so that a unit is not forced to prematurely close when it is still serving an intended purpose. The FCG believes that this is a more practical and reasonable approach to the closure of surface impoundments and which, where facilities remain subject to groundwater monitoring requirements, would be protect ive of human health, safety,
and the environment

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency considered the impoundment kept in reserve example provided by the85

commenter in developing the timeframes for closure.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0065

- 4 Organization 1 : Basin Electric Power Cooperative (Basin Electric) [5HH] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: While Basin Electric understands the EPA’s desire for the timely closure of waste management units, a “one size fits all” approach is not appropriate (and usually never is). Basin Electric envisions many scenarios where utilities may not have the need to p lace CCRs in landfills or surface impoundments for extended periods, including plant outages and plant idling due to temporary excess generation or economic issues. Basin Electric suggests utilities demonstrate, in writing, their plans and timeframes for r eturning idled facilities to operation. Further, if the proposed rule is eventually promulgated, facility owner operators would have a financial incentive to bring about the timely closure of their facilities, reducing financial assurance
liabilities for c losure and post

- closure care.

EPA acknowledges that comments on the CCR proposal “confirms the commenters’ claims that the time frames originally proposed to complete closure of surface impoundments will be practicably infeasible for the largest impoundme nts” [Footnote 13: Id.] and that EPA will need to establish different deadlines for closure, at least for the larger units. EPA is examining closure

related information for CCR surface impoundments to determine “whether there are consistent
time frames or other factors that EPA could adopt as part of the regulations.” [Footnote 14: Id.]

Further, EPA acknowledges that the tiered approach has appeal but states that other factors beyond size (e.g., climate, geography and unit configuration) can influence clos ure time frames. EPA seeks comment on “ways to establish categories of time frames that take into consideration the various factors affecting the amount of time needed to properly close a surface impoundment, and encourages commenters supportive of a tiere d approach, to provide the rationale and data to support any suggested categories of time frames.” [Footnote 15: Id.at 46946]

Basin Electric supports a reasonable approach to closure timing, based on unit size, geotechnical properties, and climatic condit ions. Many of Basin Electric’s facilities are located in the northern plains region; closure during the extreme winter months is not technically feasible due to sub

freezing temperatures and frozen soils

.

EPA Response : EPA responds to this comment in Uni t VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0066

- 5 Organization 1 : Arizona Public Service Company (APS) [5R] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive86

Comment Excerpt Text:
The final rule should not require the initiation of closure of a CCR surface impoundment or landfill, even those units that are temporarily idle, if the owner/operator of the unit can demonstrate there is a reasonable basis for keeping the impoundment active to manage CCR in
the fu ture. In addition, in circumstances where a CCR surface impoundment no longer receives CCR, the unit should be allowed to continue to receive other waste streams that are permitted under other regulatory programs. This option will be especially important u nder the expected revisions to the ELC for the utility industry, as there may be circumstances where impoundments no longer receive CCR, but where the ELC rule contemplates the impoundment remaining open
to receive non

- CCR waste streams.

The rationale for determining a time frame to initiate closure should include an evaluation of the facility’s need and its operational association with the generating units. This is especially important if, due to geographic constraints, the impoundment will be used as an” overfill” area. In summary, requirements to initiate closure should consider the future operating needs of a facility as well as its non

- CCR uses

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. EPA responds to comments regarding “overfills” and related issues in Comment Response

Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 15 Organization 1 : American Electric Power (AEP) [5FF] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
O ther Sections: 4.4.8.2.2

Comment Excerpt Text: In addition to the technical conditions outlined above, the CCR regulations must consider the aspects summarized below.

• All facilities regardless of their size will require engineering and design efforts to ensure that the facility, once completed, meets the performance criteria intended and provided for in the regulations, in guidelines and as defined by good engineering practice. This effort will include, but may not be limited to: field exploration; fie ld and laboratory testing; determination and evaluation of borrow sources; engineering and analyses, and; reports and permit documentation to ensure that the proposed work advances on a well thought out sequence that can be implemented in a safe manner. In AEP’s experience this pre

- construction process may take one to two years depending on the complexity of the specific facility.

• CCR impoundments are often under the regulatory jurisdiction of more than one state agency. For example, in Ohio, ODNR, dam s afety, Ohio EPA’s wastewater office working through the NPDES permit system, and Ohio EPA’s land environment office. All of these agencies have the common interest of making sure that the proposed work will perform with due care of human
health and the env ironment, as does AEP. Thus the review and permitting process may take up to two years depending on the complexity (not the size) of the facility.87

• Depending on the proposed closured design, the stabilization of the CCR surface may in itself require a si gnificant amount of effort. The magnitude and time of the effort is governed by the size of the impoundment and the selected stabilization methodology.

• Depending on the volumes of material needed to be mobilized to achieve the desired grades,
the availa bility of the materials and the logistics of procuring, and then safely placing them in the impoundment, may dictate the pace of construction. In recent AEP experience associated with
the 2012

- 2013 closure of a fly ash impoundment that had been inactive fo r several years, two construction seasons were required, even though the project involved a relatively small facility (

- 21 acres). This facility’s closure plan included placement of fill to achieve subgrade, installation of a composite cap, and installatio n of the hydraulic appurtenances to control the design storm events. It should be noted that at this specific site the phreatic level within the fly ash was located well below the surface of the impounded ash, and that the proposed loading associated with the closure work was low enough. These two aspects combined to result in no pore pressure built up during construction.

On the basis of the aforementioned considerations AEP recommends that time frames for commencement and completion of closure be regulat ed in accordance with the language that immediately follows.

• The owner or operator of a CCR landfill or surface impoundment must commence closure activities (which could be commencement of dewatering) 30 days after the final known receipt of
a waste tha t the unit is permitted to manage, or within 30 days after the conclusion of the functions authorized for such surface impoundment or landfill as set forth in a state

- approved operating plan, whichever is later.

• If the CCR landfill or surface impoundmen t has remaining capacity and there is a reasonable likelihood that the unit will resume managing a waste, the unit must commence closure activities within two years after the most recent receipt of waste. This period may be extended in two year
increments provided the owner or operator demonstrates in a written certification to the facility’s operating record and to the relevant state agency (at expiration of the initial two year period and at every subsequent two year period as applicable) that the owner o r operator has a reasonable belief that the unit will resume managing a waste.

• The owner or operator of the CCR landfill or surface impoundment must complete closure activities as authorized by state authorities in accordance with a state

- approved closu re process that is included in the facility’s operating record, or in accordance with a closure plan (certified by an independent professional engineer) that is included in the facility’s operating record and is provided to the relevant agency, and after o btaining all necessary state and local authorizations necessary to commence closure operations.

• Closure requirements shall not apply to a CCR surface impoundment that ceases to receive waste in preparation for being converted into a landfill as authoriz ed by a state authority

.88

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. EPA responds to comments regarding “overfills” and related issues in Comment Response

Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 4 Organization 1 : American Electric Power (AEP) Commenter Type: Electric Utility Company
Classification: NODA2 Substantive :

Comment Excerpt Text: • Confirm that the final rule will not require initiation of closure of a CCR surface impoundment or landfill, even those units that are temporarily idle, if the owner/operator of the unit can demonstrate that there is a reasonable basis that the impoundment may be needed to manage CCRs in the future. In addition, in circumstances where a CCR surface impoundment no longer receives CCRs, the unit should be allowed to continue to receive other waste streams that are permitted under other regulatory programs. This option will be especially important under the expected revisions to the Effluent Limitation Guidelines (EL Gs) for the utility industry, as there may be circumstances where impoundments no longer receive CCRs, but where the ELG rule contemplates the impoundment remaining open to receive non

- CCR waste streams

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 9 Organization 1 : American Electric Power (AEP) Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: Surface impoundments must be entirely dewatered and stabilized before closure can begin for any portion of the impoundment. While USEPA’s proposed closure timeframe may be appropriate for some landfill types, it is entirely unreasonable and unjustifiable f rom a technical perspective to apply this same time frame to surface impoundments. As an example, the free water must be drained prior to any stabilization or subgrade activities being conducted. The depth of free water will vary depending on the operation al practices at each site. Depths easily can range from 10

- 40 feet of free water. Based on structural integrity issues, the dam safety community generally accepts a drawdown of 1 foot per week to be an acceptable rate that would not impact the dams and d ikes forming the impounding structure. Based on this acceptable drawdown rate, s ignificant closure activities could not proceed much before a 10 week period elapses. Therefore, draining and removing free waters, which are defined as legacy waters in the

EL G proposed regulations, should be considered as commencement of closure activities. AEP feels strongly that USEPA should better define what is considered as commencement of closure activities within some reasonable time frame from receipt of the last CCRs into an active surface impoundment

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.89

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0068

- 6 Organization 1 : Consumers Energy Company [5II] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: • Consumers Energy agrees with EPA that flexibility must be built into the closure timeframe to allow for alternation in the use of impoundments, where one impoundment’s CCR must de

- water while opera tions shift to the alternate impoundment, or where outages required for operational purposes or to install air pollution control equipment result in extended periods of low or no waste receipt.

• Consumers Energy also proposes that it may be advantageous to delay closure so that self

cementing CCRs themselves can be produced to provide the minimum slope and select layer for the placement of final cover. These dry (water

- conditioned) self

- cementing, low permeability CCR materials applied at specified moistu re and density provide a low permeability cap on the hydraulically

- placed CCRs. This cap is superior to that provided by offsite soils, which must be excavated and transported prior to placement and generally result in substantial green field, transportati on, and carbon production impacts

.
EPA Response : EPA responds to this comment in Unit s VI. M

. 3 and M. 4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0069

- 5 Organization 1 : Ameren Missouri [5L] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: AMO believes that the final rule should not require the initiation of closure of a CCR surface impoundment or landfill, even if those units are temporarily idle, provided that we can
demonstrate that there is a reasonable basis that the unit may be needed to manage wastes in the future. In addition, in circumstances where a CCR surface impoundment or landfill no longer receives CCR, the unit should be allowed to continue to receive other waste streams that are permitted under other regulatory programs. This option will be especially important under the expected revisions to the ELGs for our industry, as there may be circumstances where impoundments no longer receive CCR, but where the ELG rule allows t he impoundment remaining open to receive non

- CCR waste streams

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0070

- 4 Organization 1 : Ameren Energy Resources Company, L.L.C (AERC) Commenter Type: Electric Utility Company90

Classification: NODA2 Substantive

Comment Excerpt Text: AERC believes that the final rule should not require the initiation of closure of a CCR surface impoundment or landfill, even if those units are temporarily i dle, provided that we can demonstrate that there is a reasonable basis that the unit may be needed to manage wastes in the future. In addition, in circumstances where a CCR surface impoundment or landfill no longer receives CCR, the unit should be allowed to continue to receive other waste streams that are permitted under other regulatory programs. This option will be especially important under the expected revisions to the ELGs for our industry, as there may be circumstances where impoundments no longer re ceive CCR, but where the ELG rule allows the impoundment remaining open to receive non

- CCR waste streams

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0071

- 2 Organization 1 : Great River Energy (GRE) [5J] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: The timeframes to initiate closure for disposal unit need to be reasonably flexible to accommodate operation variability at specific facilities. There can be a host of reasons to extend the initiation of closure. GRE operates a bottom ash disposal system with three impoundments. Two of the ponds are alternated for the dewatering of bottom ash where one will be actively receiving ash and the other is dewatered into the third pond so the ash can be excavated and landfilled. The timeframe for the pond being dewatered can range from one to two years before receiving bottom ash again. We also have other disposal units that maybe constructed b ut temporarily closed for extended periods of time due the CCRs being beneficially used. We feel there needs to be some type of rebuttal on time so the investments in these facilities are not lost

.

EPA Response : EPA responds to this comment in Unit VI. M

. 4 of the preamble. In addition, the Agency notes the example cited by the commenter is another (and new) example of alternating use of CCR surface impoundments.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0073

- 9 Organization 1 : Tennessee Valley Authority (TVA) [5I] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: • TVA prefers the Rebuttable Presumption Approach in which impoundment closure is initiated within a certain time period (e.g., 18 to 24 months) followi ng receipt of last CCR unless the utility can demonstrate a legitimate purpose for the idled period and “that there is a reasonable likelihood that CCRs will be disposed in the waste disposal unit” at a later time.91

• We believe that the appropriate regula tory option is to allow for closure timeframes to be governed by state

- approved closure plans.

• CCR impoundments often serve a critical wastewater treatment function at a utility by receiving water from other sources and power plant processes, including storm water runoff and
other low volume wastes.

• The proposed ELG rule contemplates that impoundments will be allowed to remain open to continue managing legacy CCP transport water and other regulated waste streams. The CCR rule
should not be contradicto ry. Facilities that no longer generate CCR will have a continuing need for wastewater management in their impoundment systems under the proposed ELG Rule.

• The timeframe for initiating closure should be predicated on environmental factors underlying
the CCR rule, and not due to an unrelated discharge prohibition from the ELG rule resulting in the pond no longer receiving CCR

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0075

- 4 Organiza tion 1 : National Rural Electric Cooperative Association (NRECA) [5S] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: • The final CCR rule should not require the initiation of closure of a CCR surface impoundment

or landfill if the owner/operator of the unit can demonstrate that there is a reasonable basis that the impoundment may be needed to manage wastes in the future. CCR surface impoundments or
landfills should be allowed to continue to receive other waste strea ms that are permitted under other regulatory programs, such as low volume wastewaters or stormwater, even if the unit no longer receives CCR. EPA acknowledges the importance of coordinating the CCR and effluent limitation guideline (ELG) rules. The ELG rul e contemplates units remaining open to manage

non

- CCR waste streams and any CCR rule should do likewise

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 2 Organization 1 : Nebraska Publ ic Power District (NPPD) [5N] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: 1. Time Frame For Initiating Closure

EPA proposed to establish time frames for closing waste disposal units. EPA also agreed that there can be legitimate operational reasons for facilities to maintain waste disposal units even though there may be extended periods where CCRs are not placed in the unit. In this NODA92

EPA suggested establishing a rebuttable presumption that if the unit has not received waste within a particular time frame, the disposal unit would be considered inactive and unit closure must begin within a specified time.

NPPD com ments that the rebuttable presumption is a great approach from an operational flexibility perspective. However no exact time frame to begin closure should be specified. If a facility is permitted to bum coal, then, the landfill should stay open. When the f acility permanently stops burning coal the landfill closure process should begin

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0078

- 2 Organization 1 : Alliant Energy Corporate Services, Inc. [5M] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
O ther Sections: 4.4.8.2.2

Comment Excerpt Text: Surface Impoundment/Landfill Closure

In the proposed CCR rule, EPA, offered specific closure timeframes for surface impoundments and landfills. Specifically, the proposed CCR rule states that closure activities must commence
no later than 30

- days following final receipt of CCR. In addition, EPA proposed that closure activities be completed within 180 days following the start of closure.

Alliant Energy feels the timeframes for initiating and completing closure, as suggested in the proposed CCR rule, are unreasonable and could conflict with existing state regulation. Alliant Energy supports EPA’s proposal to consider an a lternate approach that incorporates
consideration of site

- specific issues as outlined in the NODA. In addition, Alliant Energy respectfully suggests that for CCR landfills or surface impoundments located in states that regulate such facilities, EPA defer t o closure timeframes established under state regulatory oversight.

Surface impoundments can serve multiple purposes and there are numerous considerations that must be factored into closure plans which require flexibility in the closure timeline. Some
rele vant factors include, but are not limited to, stormwater retention/detention, relationship with plant decommissioning (i.e. wash

- down areas), budget timing, applicable agency approval requirements (state and/or federal) to reach closure, geography/topograp hy and other site

specific environmental factors, and consideration of end

- use for the surface impoundment. The interplay of each of these issues during the closure process requires flexibility in the closure
timeline.

For states that already regulate CCR landfills, Alliant Energy respectfully suggests that the most appropriate regulatory option to ensure the safe and prompt completion for closing CCR surface impoundment and landfills is to allow for closure time frames to be governed by the existing

state closure process that can take into account site

- specific needs. In the states which Alliant93

Energy operates, CCR landfill closure is a regulated activity. Under these circumstances, where a state reviews, approves, oversees, and certifies the closure proc ess, there is no need to resort to
the one

- size

- fits

- all closure time frame suggested in the proposed CCR rule. Moreover, many states, such as Wisconsin, regulate CCR surface impoundments, including their closure, under
the state

- authorized WPDES permit pr ogram; any impoundment closure time frames imposed in
a CCR rule should not conflict with such state

- regulated closure requirements

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0079

- 4 Organization 1 : Xcel Energy [5W] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: The proposed time frames of 30

- days for initiating closure, and 180

- days for closing waste management units such as surface impoundments or landfills are impractical, cost prohibitive and would negatively affect operational efficiency. Additionally, many impoundments or landfill operations serve multiple purposes for managing CCR and other regul ated/permitted wastes. The final rule should allow for the possibility that the unit be treated as an “active” unit if the owner/operator of a surface impoundment or landfill can demonstrate that it is reasonably foreseeable that the impoundment will be ne eded to manage CCR in the future, or if other regulated/permitted wastes are currently managed in the unit. This option is especially important relative to the ELG proposed rule and expected impacts to the utility industry affecting where

non

- CCR waste str eams may be managed. There has to be flexibility to allow the use of a waste management unit that temporarily or permanently ceases receipt of CCR, where non

- CCR waste streams are managed under a State approved permit or operation plan. The triggering even t for a landfill or surface impoundment to commence closure should be when a unit ceases to receive any waste stream for which it is permitted to manage and when it is reasonably foreseeable that the unit will not be used to manage CCR again in the future.

With the changes in the power generation industry, there may be times when an operation is idle for a period of time as part of re

- powering or decision for decommissioning of operations. EPA should provide the industry with flexibility in such situations where the owner/operator can demonstrate the reasonable potential future need for the waste management units and
demonstrate on

- going compliance with operations and maintenance requirements per operation plans and/or permits

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0079

- 7 Organization 1 : Xcel Energy Commenter Type: Electric Utility Company
Classification: NODA2 Substantive94

Comment Excerpt Text:
The docket to the 2013 CCR NODA included Xcel Energy’s 2009 document entitled Response to Request for Information relating to Surface Impoundments Under 104 (e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 US.C. 9604 (e). Xcel Energy provides the follo wing, as updates to the information contained in the referenced
document in the docket to this NODA.

NSP

- W Bay Front Plant

The 2009 submittal describes the two surface impoundments at the NSP

- W Bay Front Plant. At the time of the 2009 submittal, we could not locate records documenting that the pond had been evaluated for structural integrity. In a letter submitted to US EPA’s Steven Hoffman on July 26, 2012 Xcel Energy provided the USEPA a stability analysis and hydrologic/hydraulic analysis for the plant s only two impoundments, namely the Surge Basin and Polishing Basin. The final impoundment assessment report for these structures was issued on December 31, 2012 with a final rating of “Satisfactory”.

NSP

- M Minnesota Valley Plant

The 2009 submittal descr ibes surface impoundments at the NSP

- M Minnesota Valley Plant. These impoundments have been recently closed in accordance with the Plant’s NPDES permit. Closure consisted of the removal of the impoundments and all of their contents.

PSCo Cameo Station

Th e 2009 submittal describes two surface impoundments at the PSCo Cameo Station, both of which were incised/below grade and functioned primarily to manage non

- CCR materials. Cameo
Station was retired in December 2010 and has since been decommissioned. Closur e of the surface impoundments is being conducted under state regulations and permit approvals, and consists of removal of the impoundments and all of their contents, followed by reclamation.

PSCo Cherokee Station

The 2009 submittal included three ponds t hat receive sluiced bottom ash for temporary storage and dewatering prior to excavating the ash for off site beneficial use or disposal. In 2012, Cherokee Station converted one of the bottom ash surface impoundments for use exclusively as a
storm water pon d. Cherokee Station will retire from coal in 2017 at which time these three impoundments are expected to be closed pursuant to state regulations and permit approvals.

PSCo Pawnee Station

The 2009 submittal included a Bottom Ash Disposal Pond and an Ash W ater Recovery Pond, which is incised and below grade. Use of both of these ponds was discontinued in 2002. In October 2012, EPA notified PSCo of its intention to conduct a site assessment at Pawnee, including structural integrity of CCR surface impoundment s at the Facility. After subsequent communication between PSCo, EPA and the Colorado State Engineer’s Office, and review of95

additional information provided by PSCo on the current status of the impoundments, EPA
canceled the Round 8 coal ash site assessment at Pawnee

.

EPA Response : The Agency thanks the commenter for providing updates on these power plants.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 4 Organization 1 : Dominion Resources Services, Inc. [5P] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: As stated above, in the proposed rule the time frame for initiating closure of a surface impoundment or landfill is no later than 30 days after receipt of final CCR placement or no later than one yea r if there is a reasonable likelihood that the impoundment may receive additional CCRs. The Agency received numerous comments on the varied operational characteristics of impoundments at facilities that would place them at odds with this closure time frame . The NODA includes three examples of facilities that alternate between impoundments where one impoundment is actively receiving CCRs while the other is idle, in some cases for several years while the first impoundment is filling. The existing one year tim e frame for initiation of closure would eliminate this process of alternating between impoundments over several years, with no resultant demonstrated environmental benefit. Other examples include facilities that may have
dual fuels or switched fuels that m ay revert back to coal use and need the impoundment to be available, facilities that are beneficially reusing CCRs, but wish to maintain the impoundment due to uncertain beneficial use markets, and facilities that are currently operating in peak mode,
but could be converted to loading units in the future and would need the impoundment capacity to do so. A final example is an impoundment where CCRs are no longer introduced to comply with ELG requirements, but the impoundment remains as a legitimate wastewate r treatment system for other ELG regulated low volume wastes. A CCR rule that requires closure of such an impoundment runs counter to the letter and intent of the ELG rule.

The Agency recognizes there are legitimate operational reasons for facilities to m aintain their impoundments even though they may not be actively receiving CCRs. As such, the Agency is requesting comments on the appropriate time frame for initiation of closure of impoundments that no longer receive CCRs. One option the Agency proposes i s to establish a presumption that impoundments must initiate closure with in a specific time frame (18 months to 2 years as stated in the NODA), which may be extended if the facility could essentially demonstrate a legitimate purpose for maintaining the im poundment. The second option is to simply place an absolute time limit (5 years as stated in the NODA) for initiation of closure.

We indicate above that we support the continued use of the impoundments through their useful lives, as long as they do not po se a hazard to human health and the environment that cannot be sufficiently addressed. Under a Subtitle D model, the better of the two options in the NODA is the rebuttable presumption. In this model, the Agency establishes a reasonable time frame for
clos ure initiation that may be rebutted by a facility by identifying legitimate reasons why the96

impoundment needs to stay open. This added flexibility will allow the facility to utilize the impoundment for legitimate purposes while deferring the immediate clos ure until an appropriate time in the future when the impoundment is no longer utilized. Above we provided several legitimate examples for the continued use of impoundments, including the continued use of these impoundments as legitimate wastewater treatmen t systems under the ELG rule. We recommend that the Agency take into consideration the examples above and the coordination with the ELG rule and provide the necessary flexibility for their continued operation when identifying closure time frames for impoun dments

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0083

- 4 Organization 1 : Iowa Department of Natural Resources (DNR) [5Z] Commenter Type: State Government
Classification: NODA2 Substa ntive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: The DNR supports a maximum time limit be placed upon entities to initiate and complete impoundment closure. Without such time limits, there is concern that entities could leave sites in a perpetual state of delay so as to avoid site closure. Whether it be a tiered approach based upon size and geographic conditions or a rebuttable presumption (based upon site

- specific considerations) that facilities must close within a specified period of time (e.g. f ive years) unless certain findings could be documented to warrant additional time; EPA is encouraged to build in such flexibility to accommodate those unforeseen operational circumstances

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0084

- 5 Organization 1 : MidAmerican Energy Holdings Company (MidAmerican) [5G] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: As a point of clarification, Mi dAmerican believes EPA must clearly define what is meant by “initiation of closure.” Activities constituting commencement of closure are not well

- defined. For example, any of the following activities should be deemed individually as the start of closure
of a CCR management unit: removal of sluice lines, beginning the necessary permitting processes, turning off pumps, preparing bids for contractors, or procurement of capping materials such as clay and topsoil.

Surface Impoundments

– It is critical that the substantive requirements of a final CCR rule and the proposed ELG rule align to prevent the premature closure of CCR surface impoundments that meet applicable groundwater monitoring and/or corrective action requirements. The ELG proposal allows for continu ed use of surface impoundments to manage wastewater and identifies the impoundments as the best practicable control technology currently available for several97

wastestreams, including legacy ash transport water, CCR leachate, and cooling tower blowdown.
Und er the proposed CCR rule, however, a facility must begin closure of an impoundment within 30 days of the last receipt of CCR. [Footnote 16: See 75 Fed. Reg. at 35252, proposed to be codified at 40 CFR §257.100(j).] The requirement would force the closure o f impoundments that are otherwise serving an important treatment function for wastewaters regulated under the ELG rule. MidAmerican will provide similar comments to the ELG rulemaking docket.

The date for initiating closure of a surface impoundment should not be based on its final receipt of CCR, but rather on when the impoundment ceases to serve a function under either the CCR rule or the ELG rule. EPA should amend the regulatory text of the CCR rule to eliminate this automatic closure requirement. The un its will remain subject to structural integrity monitoring, groundwater monitoring, and corrective action requirements under the CCR rule. Any potential groundwater issues would be addressed during continued operation of a unit for the purposes of managing wastewater under the ELG rule. This approach would ensure that surface impoundments are operated in a manner that is protective of human health and the environment, while allowing them to continue serving a critical treatment function under the ELG rule.

Landfills and Surface Impoundments

– The last receipt of CCR is not an adequate trigger for initiation of closure. A facility may dedicate all newly generated CCR to beneficial uses and
exhume additional CCR for beneficial use from a landfill or surface i mpoundment. Therefore, facilities must be allowed to operate landfills and surface impoundments to best manage both disposal and beneficial use needs. Requiring initiation of a closure plan when a unit ceases to receive CCR does not provide the necessary f lexibility to support future beneficial uses

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 1 Organization 1 : Dynegy Inc. (Dynegy) [5V] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: EPA’s Proposed CCR Rule would require a CCR surface impoundment to begin closure activities within 30 days of either (i) the “known final receipt” of CCR or (2) no later than one year after the most recent receipt of CCR (i.e., if the unit has not received waste for a year, the owner or operator must initiate closure). 75 Fed. Reg. at 35252 (proposed § 257.1000(j). The proposed time frames to begin closure activities assume that once a CCR impoundment permanently ceases to receive CCR it immediately stops functioning as a management or disposal unit. That assumption is incorrect, as many CCR surface impoundments serve other waste management or water treatment functions at the power plant. For example, each of Dynegy’s coal

- fired power plants has one or more CCR surface impoundments that also are
NPDES

- permitted to serve critical non

- CCR wastewater treatment function(s) by receiving wastewater from other processes at the power plant, including other low volume wastes (e.g. , water treatment system wastewaters, boiler blowdown, floor drainage washwaters), nonchemical metal cleaning washwaters, coal pile runoff, and plant storm water runoff. As long as such impoundments continue to accept any waste streams for which they are permitted, electricity98

generating plants should be able to continue operating the impoundments regardless of whether they no longer accept CCR.

Accordingly, the deadline to begin closure activities for a surface impoundment that continu es to accept other permitted waste streams should be its last known receipt of any regulated waste stream, including low volume wastewaters or storm water. Such an approach would provide much needed compliance flexibility and also be consistent with EPA’s proposed effluent limitation guidelines (ELG) rule, 78 Fed. Reg. 34432, June 7, 2013, which would allow impoundments that, depending on the final rule option chosen, would be subject to zero discharge standards for CCR

- related waste streams to remain open to continue managing legacy CCR transport water as well as other regulated waste streams. Barring site

- specific environmental concerns, the CCR rule should not eliminate the use of impoundments that would
be allowed to continue to be used for non

- CCR waste streams under the ELG rule. Such a contradiction would violate EPA’s intent to harmonize and coordinate the two rules, as well as the statutory directive (RCRA Section 1006(b)) to do so

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0087

- 1 Organization 1 : NiSource Corporate Services [5Y] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: Impoundments used primarily for water management that may receive de minimis amounts of CCRs should not be regulated as waste disposal units.

NIPSCO does not transport precipitator fly ash by wet sluicing at any facility, having converted all of its units to dry fly ash handling. All fly ash is either benef icially reused or disposed of in a state program regulated landfill at the R.M. Schahfer Generating Station in Wheatfield, IN. The majority of impoundments utilized by NIPSCO, approximating 400 acres in combined area, are
also located at the Schahfer Gener ating Station. Most of these impoundments are primarily utilized for process water management, but may contain minimal quantities of CCRs because of water conservation and recycling efforts, or even storm water runoff.

It is NIPSCO’s opinion that the defi nition of a “CCR impoundment” should be reflective of the actual use of that impoundment. For instance, the R.M. Schahfer Intake Settling Basin is a 29 acre impoundment that receives water directly from the Kankakee River for system cooling purposes. Over time, there have been periods when water is recycled to this basin from other impoundments for conservation purposes. Although there is no measurable quantity of CCR in the Intake Settling Basin, some of the input into the impoundment has been clarified as h sluice water. Based on the definition of “CCR Surface Impoundment,” EPA has established that the Intake Settling Basin is subject to the same compliance requirements as an impoundment into which wet ash is sluiced and which may contain a significant amou nt of CCR material.

According to the Proposed Effluent Guidelines (“ELG”) for the Steam Electric Power99

Generating Category, the definition of Surface Impoundment is “A facility or part of a facility which is a natural topographic depression, man

- made exca vation, or diked or dammed area formed primarily of earthen materials (although it may be lined with man

- made materials), which is designed to hold an accumulation of liquid process wastes or process wastes containing free liquids, and which is not an inje ction well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons.”

According to the Subtitle D CCR proposal, the definition of Surface Impoundment is “A facility or part of a facility which is a natural to pographic depression, man

- made excavation, or diked area formed primarily of earthen materials (although it may be lined with man

- made materials), which is designed to hold an accumulation of CCRs containing free liquids, and which is not an injection well . Examples of CCR surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons. CCR surface impoundments are used to receive CCRs that have been sluiced (flushed or mixed with water to facilitate movement), or wastes from wet air pollution control devices, often in addition to other solid wastes.”

If EPA intends to align the CCR rule with the ELG rule, NIPSCO supports and suggests a clarification and alignment of these two definitions. The majority of ponds utilized by NIPSCO most appropriately fit the ELG definition of “Surface Impoundment,” over that listed in the CCR Subtitle D proposal. NIPSCO operates impoundments under all applicable state programs and presently is conforming to Indiana rules, as well as the state dam saf ety programs

.

EPA Response : To the extent these comments are not considered “late comments” in accordance with statements in the NODA, EPA responds to th ese comment s elsewhere in the rule preamble and comment response documents.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0090

- 4 Organization 1 : FirstEnergy [5GG] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: 4. The final rule should not require the initiation of closure of a CCR surface impoundment or landfill, even those units that are temporarily idle, if the owner/operator of the unit can demonstrate that there is a reasonable basis that the impoundment may be needed to manage
CCR in the future.

5. In circumstances where a CCR surface impoundment no longer receives CCR, the unit should be allowed to continue to receive other waste streams that are permitted under other regulatory programs. This option will be especially important under the expected revisions to the ELGs for the utility industry, as t here may be circumstances where impoundments no longer receive CCR, but where the ELG rule contemplates the impoundment remaining open to receive non

- CCR

waste streams

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.100

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0090

- 7 Organization 1 : FirstEnergy [5GG] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: FirstEnergy appreciates that EPA has acknowledged that the tim e frames for initiating and completing closure in the 2010 CCR proposal “did not adequately account for the complexities inherent in electric generating facility operations, and the different characteristics of CCR surface impoundments.” 78 Fed. Reg. at 46 944. There are simply too many variables

- many of
which are outside utilities’ control

- to promulgate one

- size

- fits

- all timelines for initiating or completing closure of CCR surface impoundments and landfills. To ensure that closure takes place in a manner t hat is both reasonable and protective of the environment, FirstEnergy believes that any closure time frames in the final CCR rule should be consistent with a closure plan approved by a state or developed and certified by a registered professional engineer. This approach represents the best option for taking into account the innumerable variables that can affect the actual time it takes a facility to close a CCR management unit.

Some of the variables mentioned above include:

a. Permitting

State closure pl ans are generally subject to state review and approval. Closure plans developed during the preconstruction permitting phase of an impoundment may not be relevant years later when an impoundment commences closure due to changes in construction practices, re gulatory requirements, and the actual condition of the impoundment. Closure activities at an impoundment cannot begin until all necessary Federal, State, and Local authorizations are issued. In some cases, this process involves public notice and comment, w hich has the potential to extend the time needed to obtain approval. While a utility can initiate the administrative and regulatory process required to close an impoundment in a timely manner, it has no control over when that process will be completed and site work can begin. Some states also require annual or periodic reviews of closure activities. In these states, regulators can, and sometimes do, require modifications of ongoing closure activities. Lastly, utilities have little control over when an

agenc y will certify completion of closure.

b. Volume of CCR

As noted above, there is little relationship between the acreage of a CCR surface impoundment and the volume of water or CCR within it. The depth of CCR or depth of water above the CCR
can vary great ly and obviously can affect the time required for safely completing closure.

c. Characteristics of CCR

The characteristics of CCR in an impoundment can vary considerably. In particular, the hydraulic conductivity, particle distribution and grain size ana lysis of the CCR will substantially affect the amount of time necessary to dewater the CCR, how stable it will be as a work surface101

for construction equipment, and the ease with which it can be moved and contoured. Also, some CCR is more prone to erosion i f disturbed, which necessitates additional measures to control total dissolved solids in water draining or being discharged from the site.

d. Climate and weather

Climate can be a factor in closure timelines, especially in colder regions. Extreme cold and wintery conditions in our region limit the time that onsite closure activities can occur (reasonable construction season is generally limited to May through October). Shorter work seasons decrease the time available to complete closure.

As with any large

- scale construction project, extreme weather and other force majeure events can be unpredictable factors that can impact closure times.

e. Availability of qualified engineers, contractors, and materials

Closing a surface impoundment is a specialized acti vity. There is a limited supply of qualified engineers, contractors, and raw materials necessary to close impoundments. These resources may not always be readily available, and a utility may have to wait until a qualified engineer or
contractor becomes ava ilable to work on a closure. Likewise, certain clays, soils, and other necessary materials may be in short supply at any given time. We anticipate these problems will be exacerbated if the final CCR rule causes a number of impoundments to close in the same time
frame.

f. Geology and land usage

The geology and previous uses of a site can playa significant role in the amount of time necessary to close an impoundment. These factors will affect, among other things, the materials that will be necessary to comp lete closure, the nature and degree of final contouring that will be required, and the need for any post

- closure water treatment for leachate or storm water.

g. Dam hazards

Impoundments classified as dams present additional engineering challenges to ensu re that a structural failure does not occur during or after closure.

h. Ongoing facility operations

Surface impoundment closures are simplest when the generating facility has ceased operation. However, in many instances, closure activities will be occurr ing while the facility continues to operate. This presents a host of other logistical problems that can delay closure. Additional complexity is introduced if a facility must coordinate closure with, for example, conversion from wet to dry ash management, c onstruction of replacement wastewater treatment capacity, or other methods to replace disposal capacity. These other elements cannot be segregated from the “closure” process as they are intimately tied to the continual operation of the facility

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.102

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0090

- 8 Organization 1 : FirstEnergy [5GG] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text:
EPA’s proposed closure period would require that a CCR impoundment initiate closure in all cases if it permanently ceases to receive CCR. This proposal appears to be based on the erroneous assumption that an impoundment that ceases to receive CCR will stop funct ioning as a disposal unit. This is not the case for many impoundments which serve other waste management and water treatment functions in addition to managing CCR. An impoundment that ceases to receive CCR can and should be allowed to continue operating to accept other permitted waste streams. Accordingly, the period to commence closure for an impoundment that can continue to accept other waste streams should be its last receipt of any regulated waste stream.

This issue is most critical with respect to the function CCR impoundments serve in accepting
other non

- CCR wastewaters. CCR impoundments often serve a critical wastewater treatment function at a facility by receiving and accepting water from other sources and power plant processes, including storm

- wate r runoff and other low

- volume wastes. So long as these impoundments are continuing to accept any waste streams for which they are permitted, utilities should be able to continue operating them irrespective of whether they continue to accept CCR.
In these c ircumstances too, however, FirstEnergy recognizes that such impoundments would remain subject to ongoing CCR groundwater monitoring and related requirements

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0091

- 2 Organization 1 : Texas Coal Combustion Products Coalition (TCCPC) [5JJ] Commenter Type: Trade Association
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: TCCPC agrees with, and supports, EPA’s conclusion “that there can be legitimate operational reasons for facilities to maintain waste disposal units, even though there may be extended periods when CCRs are not placed in the unit” and that “there are instances disposal units would
not receive CC Rs for longer than one year, even though the facility intends to continue to use the unit.” [Footnote 5: CCR August 2013 NODA at 46,944

- 46,945.]

First, any EPA requirement for initiating unit closure or limit for completing closure must be applicable only in cases where state programs do not exist to approve or authorize and review the closure process. EPA must defer to the states. To the extent that time frames are adopted, in order to accommodate potential delays in placing ash in waste disposal units, E PA must ensure that flexibility is a key component of any disposal time frames. EPA should not implement any option that places “a limit on how long an owner or operator can maintain a waste disposal unit103

without placing CCRs in the unit.” [Footnote 6: Id. at 46,945.] Furthermore, any timeline based on the last receipt of waste should be based on when the waste management unit last receives any waste that it is authorized to receive.

There can be numerous reasons why a disposal unit may not be used for lon g periods of time, including weather, geographic, and most evident recently, regulatory and market reasons. For instance, the cumulative and constantly evolving impacts of EPA’s regulation of coal

- fired generating units, as well as ever changing market con ditions, have introduced an additional level of uncertainty into the coal

- fired electricity generation market that may affect when and how disposal units are utilized. Some coal plants may be idled during off

- peak periods (which would extend far beyond the 30

- day period originally proposed by EPA), and some plants may be idled for even longer. However, until a coal

- plant is actually decommissioned and dismantled, there must be associated and open disposal locations.

Coal is vital to America’s energy mix an d provides the most consistent, stable, and affordable energy resource in the country. Even plants that have been idled for a long period of time, may still be called upon to produce power at a later date as conditions and needs change. Ultimately, any pla nt that is operating or has the potential to operate, must be allowed to maintain available and open disposal options

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 7 Organization 1 : Duke Energy [5B] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: EPA has acknowledged that the time frames for initiating and completing closure in the 2010 CCR proposal “did no t adequately account for the complexities inherent in electric generating facility operations, and the different characteristics of CCR surface impoundments.” [Footnote 11 See Federal Register Volume 78 No. 149 August 2, 2013 at 46944.] EPA has also reques ted comments on coordination of the two rules impacting surface impoundments, the Effluent Limitation Guidelines (ELG) proposed rule and the CCR proposed rule as they pertain to CCR surface impoundments. [Footnote 12 See Federal Register Volume 78 No.110 J une 7, 2013 at 34432.] The current management practices concerning the use of CCR surface impoundments are not only for use in storage and disposal of CCR but also perform an important function for the wastewater treatment systems at most of the Duke Energ y coal fired generating stations. Duke Energy has been monitoring ground water quality around its CCR surface impoundments voluntarily and through the provisions of station’s NPDES permits. Duke Energy recommends that EPA eliminate the mandatory liner retr ofit requirement after 5 years as proposed in 40 CFR 257.71 for all CCR surface impoundments that are in compliance with the ground water monitoring and corrective action requirements found in the proposed 40 CFR 257.90 through 40 CFR 257.98. These impound ments should be allowed to remain open until the surface impoundment reaches its intended or permitted storage capacity of CCR. The impoundments104

should also be allowed to remain open to treat low volume wastewaters (even when CCR is no longer placed in the impoundment) where there is adequate treatment capacity to manage the discharge of the NPDES permitted wastewaters.

Duke Energy agrees that closure of a CCR surface impoundment should be initiated within 30 days of final receipt of CCR if the impoundment has reached its maximum permitted storage capacity and/or there is inadequate capacity (i.e. retention time) to adequately treat waste waters that it has been permitted to discharge through its NPDES outfall. In the 2010 CCR proposal, EPA proposed that cl osure activities should commence within 30 days of an impoundment’s last known receipt of CCR or no later than one year after the most recent receipt of waste if the unit has remaining capacity and there is a likelihood that it would receive additional CCR . [Footnote 13 See Federal Register Volume 75 No 118 June 21, 2009 at 35252, 40 CFR 257.100 (j).] In this NODA, the Agency appropriately recognizes that “there can be legitimate operational reasons to maintain waste disposal units even though there may be extended periods where CCR are not placed in the unit.” [Footnote 14 See Federal Register Volume 78 No. 149 August 2, 2013 at 46945.]

Impoundments should not be forced to initiate closure if they meet the proposed ground water protection standards.

Duke Energy identifies many circumstances (see below) where a surface impoundment is idle and no longer receiving CCR for more than one year (365 days). A station nevertheless needs the ability to use the surface impoundment for CCR disposal when it is time to operate the coal fired generating unit. Where CCR is managed in a surface impoundment that is in compliance with the ground water monitoring and corrective action requirements found in the proposed 40 CFR 257.90 through 40 CFR 257.98, the surface impoundme nt must be allowed to remain open and available for operation. During the extended unit outages listed below, certain CCR surface impoundments still operate to treat low volume wastewaters such as storm water. Some examples of extended periods of down time are as follow:

- Some of the smaller coal fired generating units do not operate during low load conditions and are often limited in operation because other units that burn other fossil fuels (i.e. natural gas) are utilized first to provide electricity to the consumer. EPA must realize that these units play an important role in peak load conditions and must be available at all times to operate.

- Extended maintenance outages, either forced or planned, can also keep a unit off

- line for an extended period o f time.

Duke Energy is concerned that if EPA does not provide flexibility for a utility to maintain the operation of surface impoundments that are meeting the ground water protection standards forcing a utility to initiate closure of surface impoundments before it reaches its intended or permitted capacity, grid reliability could be negatively affected.

Impoundments should not be forced to initiate closure if they no longer receive CCR because they provide a critical function as part of the station waste water treatment system.105

Duke Energy recommends that EPA eliminate the requirement in proposed 40 CFR 257.99 (f) that requires an operator of a CCR impoundment to begin closure activities (i.e. 30 days or 365 days) that are tied to the surface impoundment receiving the known final receipt of CCR. EPA has acknowledged that the requirements for surface impoundments as they pertain to the ELG proposed requirements and the CCR proposed requirements should be coordinated. The ELG proposal contemplates that the o wner of a surface impoundment who is prohibited from discharging flyash and bottom ash transport water can nevertheless continue to discharge legacy CCR transport water from a CCR impoundment provided that the impoundment is used to treat
wastewaters such as boiler blowdown, leachate, storm water, and other low volume waste waters. If a surface impoundment is in compliance with the ground water monitoring and corrective action requirements found in the proposed 40 CFR 257.90 through 40 CFR 257.98, it
should be allowed to remain open to maintain that critical wastewater treatment function.

Duke Energy recommends that the owner of a CCR surface impoundment be allowed to continue the operations regardless of the length of time since it last rec e ived CCR for th e use of waste water treatment and other critical operational functions. Duke Energy supports regulatory text indicating that the closure of a CCR surface impoundment should be initiated within 30 days of final receipt of CCR if the impoundment has reached it maximum permitted storage capacity and/or the capacity (i.e. retention time) to adequately treat waste waters it has been permitted to discharge through its NPDES outfall. EPA should not prematurely eliminate the use of valuable assets before they have reached their full and intended functional capacity

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0096

- 1 Organization 1 : Texas Commission on Environmental Quality (TCEQ) [5CC] Commenter Type: State Government
Classification: NODA2 Substantive

Comment Excerpt Text: The EPA’s proposed rule under the RCRA Subtitle D option requires that the facilities initiate closure no later than one year after the most recent receipt of waste ( i.e., if the unit has not received waste for a year, the owner or operator must initiate closure).

The TCEQ recommends that the one

- year deadline included in the original proposal in 40 CFR §257.100(j) be increased to at least three years. As the EPA has acknowledged in the NODA, information collected during the structural integrity assessment from several coal

- fired electric
utilities shows that the one

- year time frame required in the original proposal is impractical and would create a number of operation al constraints. Further, the NODA notes that information collected from electric utilities indicated that there may be legitimate reasons for a CCR surface impoundment or landfill to be kept idle for two to three years (or more) before waste management in the unit is resumed. Therefore, by requiring closure of the unit to be initiated within one year after the most recent receipt of waste (as originally proposed), EPA would force a facility to close the unit when there is still additional capacity to operat e the existing management unit. Based on these observations, the TCEQ recommends that the EPA allow facilities at least three years to initiate closure of a CCR landfill or surface impoundment if the106

management unit has useful capacity and is planned to be used in the future.

In addition, the TCEQ recommends that 40 CFR §257.100(j) be further revised to include a provision for the owner or operator to request an extension to the proposed three

- year time frame and provide flexibility for States to approve s uch extensions based on a case

- by

- case review and merit of the request

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0101

- 1 Organization 1 : AMEC Environment & Infrastructure, Inc. Commenter Type: Other Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: The EPA should provide ample time for utilities to safely and economically close existing surface impoundments for coal combustion residuals ( CCR) and develop new landfills for receipt of these byproducts. In some states permitting and construction of landfills may take a number of years, and the closure of existing surface impoundments can take just as long.

The process for obtaining approval for and construction of a landfill in some states may require the following activities: identification of an acceptable site, purchase of the property, geological investigations, environmental investigations, local approvals, preparation of an investigatio n report, approval of the site by the state permitting authority, preparation of a design and operation plan, response to requests for additional information, an additional local approval, issuance of a draft permit, public input, issuance of a final permi t, and finally, the construction of the landfill and support facilities. If, after submitting a site for approval, local and state approvals cannot be obtained, the utility will need to begin the initial steps above again. Even just the
closure of a CCR im poundment without the need for a new landfill requires a number of these steps in some states and can take several years. The existing workload on state agencies in addition to the new CCR permitting workload will very likely lengthen the process considera bly. In addition the size of the CCR impoundment to be closed and the size of a new landfill may, but not always, shorten the engineering and construction phases but do not change the regulatory steps in some states.

Offsite transportation arrangements fo r CCR to a new landfill must be developed if the landfill cannot be located on the generating plant property due to inadequate space, geological or environmental conditions, lack of local approval, or other issues. Public safety is of paramount importance when the use of public roads is required. There are many factors to be considered: frequency of public use; the type of public use such as by school buses, emergency vehicles, public transportation, and commercial vehicles; condition of roads; the frequenc y of vehicles transporting CCR; local authority requirements for use and maintenance; and often other factors. If local approvals cannot be obtained, the utility may have to find another site for a landfill and begin this process again. All these factors c an lead to an extended schedule, and the existing impoundment cannot be closed until a new landfill is operational.107

The process for closure of a CCR impoundment in some states requires a number of the same steps as permitting and construction of a new lan dfill and can take just as long. These steps may include local approvals, geological and geotechnical investigations, environmental investigations, preparation of an investigation report, permit application with closure plan, response to requests for addit ional information, regulatory agency approval, an additional local approval, issuance of a draft permit, public input, issuance of a final permit, implementation of the closure plan, and possibly other steps. Some of these steps might be done in parallel w ith permitting of a new landfill. However, availability of state regulatory agency personnel, their normal workload, plus CCR permitting must be considered and will very likely lead to extended
schedules.

In addition to storage of CCR, surface impoundment s may be used for other purposes such as wastewater or storm water treatment. The time for development of alternative methods for these ancillary uses must also be considered. Treatment of wastewater and storm water must be done
in a manner which meets the new Steam Electric Power Generating Effluent Guidelines (NPDES). It is extremely important that adequate time is provided for coordination of these guidelines with CCR requirements. We recommend these regulations be issued at the same time.

In light of t he above issues, and particularly the additional workload on state agencies and the need to coordinate NPDES requirements with CCR requirements, eight to ten years should be allowed for closing surface impoundments and commissioning of new landfills

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 10 Organization 1 : PPL Services Corporation [5E] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: As noted in an earlier example, PPL as well as other plant operators do use surface impoundments and landfills for different legitimate uses other than the management of CCRs. The final CCR rule should take these various legitimate use scenarios int o account in prescribing when closure must be initiated. In the 2010 CCR proposal, EPA proposed that closure activities should commence within 30 days of an impoundment’s last known receipt of CCR or no later than one year after the most recent receipt of waste if the unit has remaining capacity and there is a likelihood that it would receive additional CCR. In this NODA, the Agency appropriately recognizes that “there can be legitimate operational reasons to maintain waste disposal units even though there may be extended periods where CCRs are not placed in the unit.” 78 Fed. Reg. at 46945. EPA proposes two approaches for when closure must commence for temporarily idled units. First, the Agency proposes creating a rebuttable presumption that an impoundment must initiate closure within a certain time period (e.g., 18 to 24 months) unless the plant operator can demonstrate a legitimate purpose for the idled period and “that there is a reasonable likelihood that CCRs will be disposed in the waste disposal unit” at a later time. 78 Fed. Reg. at 46945. Second, EPA proposed that the rebuttable presumption approach be subject to a maximum period108

of time (e.g., 5 years) for which a unit may remain idle. 78 Fed. Reg. at 46945.

Of the two proposed options, a modified version of the first rebuttable presumption approach is clearly the most reasonable option, not to mention more consistent with the Agency’s public views regarding the operation of impoundments. The Agency provides a list of examples in which a plant opera tor could demonstrate that an impoundment is only temporarily idled, including when a coal

- fired generating unit is temporarily idled or temporarily switches to an alternative fuel it is designed to burn, or when a facility alternates between impoundments in the normal course of operation. EPA noticed three documents that exemplify legitimate circumstances in which an impoundment may be temporarily idled: (1) Assessment of Dam Safety Coal Combustion Surface Impoundments (Task 3) Final Report, Allegheny Ener gy, R. Paul Smith Station, Williamsport, Maryland; (2) Coal Combustion Waste Impoundment Task 3

– Dam Assessment Report, John E. Amos Plant (Site 26), Bottom Ash Dam, American Electric Power, St. Albans, West Virginia; and (3) Response to Request for Inform ation Relating to Surface Impoundments Under 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9604(e). It is appropriate to consider on these documents in this rulemaking because they demonstrate that it is not uncommon for a CCR management unit to be idled temporarily for legitimate operational reasons.

There are, of course, other reasons to idle an impoundment or landfill. For example, PPL has
some facilities that have been able to divert all of their CCR to beneficial uses in some instances. [Footnote 1: In the case of CCR diverted from a surface impoundment, it is likely that this impoundment would continue to manage other waste streams, such as storm water and low
volume wastes. As discussed further in the following section, a surface impoundment or landfill that temporarily or permanently ceases to receive CCR, but continues to manage other waste streams it is permitted to manage, should not be subject to closure. These units should remain operational to co ntinue managing other permitted wastes.] In a few cases, currently generated CCRs have been insufficient to meet demand for beneficial use, and members have withdrawn CCRs from existing onsite landfills or impoundments to supplement the currently generated CCRs for purposes of beneficial use. These circumstances result in the idling of the onsite CCR management or disposal units due to variable demand for CCRs. However, PPL cannot assume
that it will be able to divert its CCRs for beneficial uses indefinite ly. Therefore, PPL must retain sufficient standby capacity at its facility to manage its CCRs if beneficial use demand slackens. If a PPL facility were forced to initiate premature closure of its impoundment or landfill within a certain time period of dive rting CCRs to beneficial uses, it likely would have to cease this practice because PPL cannot rely on beneficial use as its only means of managing CCRs.

Given the various scenarios in which a plant operator may elect to idle a CCR management unit,
it is i mportant that the final rule clearly provides that the initiation of a management unit’s closure may be postponed if there is a legitimate purpose to do so and the plant operator has a reasonable belief that the impoundment or landfill may be needed to man age CCRs in the future. PPL supports USWAG’s proposed regulatory text for achieving this objective. PPL also believes that the text should be drafted broadly so that it does not restrict legitimate impoundment or landfill management scenarios, including th e circumstances described above, and accounts for variations in state regulatory programs. PPL understands that during any period in which the unit is “idle” in the sense that it is not receiving CCRs (and/or other wastes), it would still be109

operating unde r the CCR rule and would remain subject to all applicable groundwater monitoring, corrective action, and other related requirements. Furthermore, EPA should not specifically limit how long such a landfill or surface impoundment may remain idle.

EPA’s prop osed closure period would require that a CCR impoundment or landfill initiate closure in all cases if it permanently ceases to receive CCRs. This proposal appears to be based on the erroneous assumption that CCR units that permanently cease to receive CCRs will stop functioning as a management or disposal unit. This is not the case for many landfills and surface impoundments which serve other waste management or water treatment functions in addition to managing CCRs. A landfill or impoundment that ceases to receive CCRs can and should be allowed to continue operating to manage other permitted waste streams. Accordingly, the period to commence closure for a landfill or impoundment that can continue to accept other waste streams should be its last known receip t of any regulated waste stream, such as low volume wastewaters or storm water. This is particularly important to PPL since it does have former CCR disposal impoundments which continue to function as waste water treatment basins. So long as these impoundme nts are continuing to accept any waste streams for which they are permitted, plant operators should be able to continue operating them irrespective of whether they continue to accept CCRs.

As EPA is well aware, there is a possibility that plant operators will be compelled to stop managing certain CCR transport waters in surface impoundments due to the anticipated revisions to the utility ELG rule. Several options in the ELG proposal include zero discharge standards for
certain CCR

- related wastes, such as f ly ash transport water. If adopted, these options would effectively require utilities to stop managing the CCR

- related wastes covered by the zero discharge standards in impoundments with a permitted outfall. The ELG proposal, however, expressly contemplate s these impoundments remaining open to continue managing legacy CCR transport water and other regulated waste streams.

Plant operators that convert from coal to other fuel sources will face a similar dilemma under the
CCR rule unless it is revised. These facilities will no longer be generating CCRs but will have a continuing need for wastewater management in their impoundment systems under the ELG rule. If they are compelled to close existing surface impoundments based on the cessation of receipt of
CCRs i n the units, the management strategies under the ELG for other non

- CCR wastewaters will be undermined. Instead, facilities will have to find alternative wastewater treatment options, including constructing new wastewater treatment facilities and waste mana gement units (assuming there is even space to do so). This is of particular concern for one of PPL’s facilities in Kentucky which is scheduled for replacement of the coal units with a combined cycle gas facility, but would want the option to continue using waste water ponds that were operated for
the coal

- fired plant. Therefore, to ensure harmonization between the two rules, impoundments that formerly managed CCRs but continue to accept other regulated waste streams should be able to continue operating so l ong as they are providing a necessary function at the facility.

Some state programs may provide a means for facilities to convert CCR surface impoundments to landfills through dewatering and other appropriate requirements. This practice may become

more co mmon after the implementation of the ELG rule. Units that are undergoing conversion generally must cease receiving CCR material, at least temporarily. EPA should clarify that this110

temporary cessation of CCRs does not trigger closure requirements. After the se impoundments are appropriately converted, EPA should also specifically identify these facilities as landfills and impose the regulatory requirements for existing CCR landfills rather than require these converted units to be subject to controls for exist ing surface impoundments, including potential closure requirements. This will authorize the continued operation of these existing CCR landfills, regulate these units pursuant to the appropriate applicable standards, and not require utilities to acquire lan d for the construction of new landfills. PPL is considering this option at some of its facilities and would want to have this option available. PPL supports the regulatory language that USWAG has proposed in its NODA comments

.
EPA Response : EPA responds t o this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 8 Organization 1 : PPL Services Corporation [5E] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text:
The final CCR rule should not require the initiation of closure of a functional and regulatory compliant CCR surface impoundment or landfill, even of those units that are temporarily idle, if the owner/operator of the unit can demonstrate that there is a reasonable basis tha t the impoundment may be needed to manage wastes in the future. In addition, in circumstances where a CCR surface impoundment or landfill no longer receives CCR, the unit should be allowed to continue to receive other waste streams that are permitted under other regulatory programs. This option will be especially important under the expected revisions to the ELGs for the utility industry, as there may be circumstances where impoundments no longer receive CCR, but where the ELG rule contemplates the impoundm ent remaining open to receive non

- CCR waste streams.

For example, this is of particular concern for PPL which has at a number of its facilities already invested in dry handling of its CCRs and no longer uses the former ash disposal impoundment for disposa l of CCRs, but those facilities are still used to treat plant waste waters. PPL would not want to be forced to prematurely close a permitted waste water treatment basin solely due to the fact that it is no longer being used to dispose of CCRs

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0105

- 5 Organization 1 : CME Engineering LP [5O] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: Under the subtitle D option, EPA proposed to establish mandatory time frames for closing waste disposal units. Specifically, EPA proposed that closure activities must commence no later than111

30 days following the known final receipt of CCRs, and that closure must be completed within 180 days. EPA also proposed that the 30

- day deadline to commence closure activities could be extended to one year if the CCR waste disposal unit has remaining capacity and there is a
reasonable likelihood th at the CCR waste disposal unit would receive additional CCRs.

According to EPA, “commenters have convinced EPA that it did not adequately account for the complexities inherent in electric generating facility operations, and the different characteristics o f CCR surface impoundments in its original proposal. Consequently, EPA is evaluating several different options to address these concerns,” and solicits comments on time frames for initiating and completing closures. Id. at 46,9•U

-- 15.

Homer City believes that it is inappropriate to promulgate a one

- size

- fits

- all approach for closure of ash impoundments and landfills; for operational and technical reasons. Depending on the construction of the CCR site (impoundment versus landfill), significantly more time m ay be required to decommission and close a site. For example, prior to the closure of an impoundment, the facility must be fully dewatered and the waste must have sufficient time to consolidate to ensure long term structural stability. Time rate settlement and consolidation can take a number of years depending upon the volume of fill and the drainage paths designated to dewater the waste volume. Operational constraints also vary on a site

- specific basis. Similarly, many CCR disposal
landfills also serve as disposal facilities for other residual waste streams. Accordingly, while disposal of CCR may be temporarily suspended or terminated, disposal of the other residual waste streams may continue.

A definitive time frame to initiate closure also does not consi der the variables of beneficial use. Facilities that practice beneficial use may be forced to reconsider such environmentally positive and cost effective applications. For example, a facility may identify a beneficial use for its CCR that could last for ye ars, but with a specific end date (such as a large

- scale highway construction project). At the end of the project, the facility will need to return to utilization of its CCR disposal facility. Accordingly, the establishment of an arbitrary date to initiate closure may dissuade the facility from participation in beneficial use.

The requirement to initiate closure activities is typically specified in the corresponding state disposal permit. This requirement should remain within the jurisdiction of each state . If EPA chooses, however, to establish a time period to initiate closure, it should include reasonable and clear provisions that allow the facility owner to provide a demonstration that would allow the facility to remain open.

The time frame required to close a facility is not necessarily dependent on size. Factors such as stage of completion (e.g., whether the facility has reached its ultimate design configuration at the time of closure), state permitting requirements, construction bidding, construction season, availability of construction materials (particularly liner material), all have an effect on closure timing. Accordingly, a one

- size

- fits

- all closure period is not appropriate. The establishment of time limits to complete closure should be the deter mined by the state regulatory agency. PaDEP in particular is familiar with the conditions germane to each facility and are responsible for review and approval of the closure design and construction. In addition, the design and
construction certification fo r the facility is done under the supervision of a registered112

professional engineer. If EPA chooses to establish a time period to complete closure, it should include reasonable and clear provisions that allow the facility owner to provide a demonstration
th at would allow the facility to exceed the regulatory closure period

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0106

- 1 Organization 1 : Cleco Corporation [5C] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: Under the Subtitle D option, the proposed rule requires that CCR impoundments must be lined or closed within 5 years of the effective date of the rule. The proposed rule requires that closure activity must be initiated within 30 days of the known final delivery of CCR to an impoundment. In addition, the proposal requires that closure be completed after initiation within 180 days. The
initiation of c losure is not defined in the proposal. Assuming initiation of closure begins with the movement of material at the impoundment, Cleco believes that the two time periods found in the proposed rule for initiation of closure and completion of closure are inade quate.

In order to address defining of project scope, delivery of bids, bid evaluation, awarding of contract, mobilization and commencement of work, no less than 90 days should be allowed in the rule for initiation of closure activity after the last known delivery of CCR to an impoundment. In addition, be aware that the Louisiana Environmental Quality regulations at LAC 33:VII.513.E.1. require a 90 day notification prior to beginning closure activity:

Notification of Intent to Close a Facility. All permit holders shall notify the Office of Environmental Services in writing at least 90 days before closure or intent to close, seal, or abandon any individual units within a facility and shall provide the following information

Cleco recommends that 90 days be allowed in the rule for initiation of closure with some language placed in the rule allowing a longer time period if approved by the regulatory authority

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0108

- 4 Organization 1 : American Coal Ash Association (ACAA) [5U] Commenter Type: Trade Association
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: ACAA’s mission is to encourage beneficial use of CCP. Therefore we do not engage in comment on disposal requirements unless there is an impact on beneficial use. In discussing the closure of113

impoundments and landfills receiving CCPs, EPA proposes initiatio n and completion time frames. When EPA proposes time frames for facility closure there is a real impact on the future beneficial use of CCP already place in these facilities. The time frames proposed fail to take into account the potential for beneficial u se of CCPs currently contained within disposal units.

CCPs that have been comingled with other materials may not be appropriate for reclamation for beneficial use or may require significant investment in processing technology to prepare those
materials fo r recycling. However, CCPs that have been placed into disposal in a discrete manner have significant potential for future beneficial use

- a practice that has been demonstrated in numerous locations nationwide. By placing strict restraints on the initiatio n and completion of closure of CCP disposal units, EPA would be pre

- empting opportunities for reclaiming these materials for beneficial uses that would greatly reduce potential impacts on human health and the
environment.

For example, a large impoundment receiving fly ash may need to be dewatered prior to any beneficial use of the impounded material. The excavated fly ash must be dried and handled in a manner appropriate for use in a concrete batch plant or a cement kiln. Storage units for the processed ma terial must be in place to receive the dried material. Market demand dictates how quickly this reclaimed material can be shipped. As market demand is shaped by many factors, not the least of which is weather, it is easy to see that this process could take quite a long time relative to the limits proposed. Six months, one year or even two years would likely not be sufficient for larger disposal units. As the markets for fly ash meeting ASTM International specifications continue to grow demand for this materi al is increasing. Further, as more fly ash is used to create more durable concrete structures greenhouse gases generated by manufacture of portland cement are avoided. According to data from the annual ACAA Production and Use surveys over 140 million tons of greenhouse gases have been avoided by the use of fly ash in lieu of portland cement since 2000. Clearly this is an important environmental benefit resulting from the use of fly ash in concrete products. Hence, arbitrary, short deadlines for closure of p otential supply sources would be counter

- productive to improving the environment.

Another example of markets for ash in already placed in disposal units involves landfills or impoundments receiving bottom ash appropriate for use in road bases. Again, dewa tering is needed if the CCPs are in an impoundment, creating significant time for material handling. Even if the material does not need moisture conditioning, a project schedule may be such that the use might not be ready to receive the CCPs for a year or two.

Other CCPs currently placed in disposal units may also have potential for reclamation and processing prior to beneficial uses. Since many millions of tons of CCPs have been placed in disposal facilities over several decades, there is a vast inventory of CCP that may be eligible for
beneficial use. It would be a serious miscalculation to set closure rules that would eliminate beneficial use opportunities.

We recommend that the EPA consider development of meaningful incentives for the beneficial
use of CCP already in disposal units. By providing incentives for development of technologies the discussion of closure requirements becomes less about managing a waste facility and more114

about managing a valuable resource that provides enhanced environmental pro tection while providing true economic value

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0109

- 4 Organization 1 : Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier) [5F]
Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.2

Comment Excerpt Text: Hoosier is very concerned about a “one size fits all” mentality concerning the closure of CCR facilities. There are fundamentally different factors between the two facilities that Hoosier owns and operates that manage CCRs, One can only imagine the different concerns across the country when we consider different aspects such as climate (particularly rain fall amounts), different
sizes of facil ities and other uses for these facilities including wastewater treatment.

To ensure that closure takes place in a manner that is both reasonable and protective of the environment, Hoosier believes that closure time frames in the final CCR rule should be

c onsistent with a closure process approved by a state or a closure plan developed and certified by a registered Professional Engineer. This approach takes into account the multitude of variables that can affect the actual time it takes to close a CCR manage ment unit.

Hoosier has a current closure plan for its landfills. We place final cover on all portions of the landfill which are up to final grade on an annual basis as well as have requirements for daily alternative cover. Closure plans are required as pa rt of any landfill permit and any changes must be approved by the state. And although admittedly, pond closure plans have not been required in Indiana to date, our ponds have had closure plans, put together by a national engineering firm, and updated as ac tivities warrant. The only part missing was the requirement to have the plan approved by the state.

Hoosier is especially concerned with the issue of when closure needs to be initiated. As allowed under the regulations, Hoosier’s ash ponds also serve as t he location where plant process waters are treated and sent to the NDPES outfall for monitoring. Also, as EPA notes, utilities are looking at the issue of idling a facility but keeping it available for use in the event that the economics of operating the g enerating units become more favorable. Forcing an ash pond to close prematurely could jeopardize mat ability.

Hoosier does agree that the rebuttable presumption concept for initiating closure is appropriate as well as necessary. At Hoosier’s Ratts Generat ing Station, plans call for idling the two units. However if more cost effective pollution control technologies became available, Hoosier would consider installing the technology and operating the units. This technology might become
available after the tim e EPA used in its presumption, which was 18 to 24 months. Also at Hoosier’s Merom Generating Station, a new landfill cell was constructed that included much excavation to make the most effective use of the landfill footprint. It is desirable for Hoosier to115

place CCRs in the new landfill long enough to raise the elevation to make stormwater flow to stormwater features and reduce the amount of leachate generated. Hoosier intends to place cover on an older area until the new cell has received enough material f or this to happen. This could take longer than the time EPA proposed for the rebuttable presumption.

Hoosier concurs with EPA that an approach for closure time frames that only considers the size of the impoundment is not appropriate. Other factors such a s climate, geography, and configuration are relevant and can be significant. Hoosier feels that the rebuttable presumption concept is also appropriate for completion of closure

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Section 4.4.8.2.2

- Time to complete closure

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0053

- 1 Organization 1 : Seminole Electric Cooperative, Inc. (SECI) [5X] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: SECI supports EPA’s consideration of alternative closure timeline criteria. The current requirement of closure within 180 days of final receipt of CCRs would put unnecessary restraint on facilities to develop and implement closure plans within a short time period. SECI’s own experience with landfill closure has demonstrated the need for an extended closure time to allow for proper consideration of design, permitting, and construction. In addition to the development of an appropriate final cover system, SECI has also had to design extensive stormwater conveyance structures and consider re

- designing existing structures

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 4 Organization 1 : Southern Company [5DD] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.1

Comment Excerpt Text: Southern Company appreciates the opportunity to further comment to EPA regarding the
technical issues surrou nding closures of surface impoundments and landfills. In the 2010 CCR proposed rule, EPA relied heavily on the existing regulations directed to solid waste landfills (i.e., the municipal solid waste landfill regulations in 40 CFR Part 258 [Footnote 15: See 75 Fed. Reg. at 35193.] for proposing timeframes for initiating and completing closure of surface impoundments that manage CCRs. Since existing solid waste regulations for landfills prohibit free liquids, it was obvious that application of regulations for dry landfills would not accommodate surface impoundments that, in many cases, hold thousands of gallons of liquid. As seen in the multitude of comments submitted to EPA in response to this very aspect related to116

closure of surface impoundments holding fre e liquids, EPA has recognized that it “did not adequately account for the complexities inherent in electric generating facility operations, and the different characteristics of CCR surface impoundments” in the respect to closure. [Footnote 16: 78 Fed. Reg. at 46944.]

EPA must recognize that a one

- size

- fits

- all timeframe or program will not adequately accommodate each and every unit managing CCRs; site

- specific characteristics must be taken
into account. A site

- specific closure plan should be developed indi vidually for each facility in conjunction with the state regulator and an approved registered professional engineer. EPA must not apply confined timeframes for initiating and completing closure to any approach because
there are a multitude of issues and co mplexities that can extend the time necessary for closure at any given site. In this NODA, EPA has presented options to allow for closure timeframes to be extended under certain rebuttable presumptions, which Southern Company generally supports
with certai n additional recommendations

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 5 Organization 1 : Southern Company [5DD] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.1

Comment Excerpt Text: i. Options EPA Considers for Initiating Closure Must Include the Intended Use of The CCR Management Unit

In EPA’s 2010 CCR proposed rule, initiation of closure of CCR management units w ould be required within 30 days of either (1) the known final receipt of waste or (2) no later than one year after the most recent receipt of waste, based on existing municipal solid waste regulations. In this section of the NODA, the Agency discusses the difficulties associated with addressing “inactive” or abandoned units and has attempted to address those units in its NODA. Since the proposal, EPA has been made aware, however, of several examples of routine and legitimate circumstances in which disposal units would not receive CCRs for longer than one year, even though the facility intends to continue to use the disposal unit. The NODA then cites multiple examples, including Allegheny Energy’s R. Paul Smith Station, AEP’s John E. Amos Plant, and
Xcel Ener gy’s Valmont Station where sluicing alternates between two separate impoundments, removing the ash from one facility when it becomes full while the other is utilized. While these are appropriate examples of varying uses, it is not inclusive of all of the s cenarios applicable to a CCR management unit.

Many impoundments are not disposal units, but rather process and treatment ponds used for decanting of the ash prior to its disposal in a landfill. EPA should not put constraints on such operations, as the int ent of the proposed rule was to address disposal facilities, and the CCR rule should not infringe upon such operational activities. If the final CCR rule restricts or disallows the use of sedimentation ponds as part of a wet ash transport system, appreciab le additional costs117

may be incurred compared to most of the options presented in the proposed ELG, and especially for handling of bottom ash.

EPA also references generating units that may be placed into long

- term reserve status or temporarily idled in res ponse to low demand. As such, surface impoundments may not be used for extended periods of time. Therefore, it is important for EPA to consider the likelihood that these CCR management facilities would still be of future use once the generating unit resume s operations.

Surface impoundments serve more functions at a coal

- fired power plant beyond managing CCRs. The impoundments also manage low volume wastes (wastewaters) as a wastewater treatment system. If EPA were to dismiss any of these uses without consi dering the consequences to the facility for the other uses, the impact to operations would be significant, and it also disregards the original intent of the management unit itself. It is vital for EPA to prescribe closure only when
the intended uses of the unit have ceased, and not based on when the unit last receives CCRs. In certain cases, a unit may receive the last known amount of CCRs but remains necessary for treatment of “legacy wastewaters” afforded by the proposed ELGs, or to become operational

aga in in service of units that resume operations after being temporarily idled.

Because of these different uses noted above, Southern Company supports the ideas presented by EPA for allowing additional time to initiate closure of surface impoundments. EPA pr oposes two options for allowing more time for temporarily idled units to initiate closure. First, EPA states that it could possibly establish a rebuttable presumption so that if the impoundment has not received waste within a particular time frame, the dis posal unit would become inactive and closure must begin within a specified time. EPA lists as possible examples a requirement to initiate closure if the unit is inactive for a period of 18 months to 2 years unless the facility could
document certain findin gs, such as any of the following situations:

(1) A written demonstration by the owner or operator documenting that a CCR waste disposal unit is dedicated to a temporarily idled generating unit and there is a reasonable likelihood CCR disposal will begin a fter the generating unit resumes operation; (2) a written demonstration by the owner or operator documenting that the disposal unit is dedicated to an electric generating unit designed to burn coal and another fuel, and that the reason the disposal unit ha s not received CCR within a specified time is that a non

- coal fuel has been used and that there is a reasonable likelihood that CCRs will be disposed of in the unit once coal is burned again; and (3) a written demonstration by the owner or operator documen ting that normal plant operations include periods when the disposal unit does not receive CCRs and there is a reasonable likelihood CCR disposal operations will resume in the future.

Second, EPA proposes a rebuttable presumption that would allow the unit a maximum period of time (i.e., 5 years) for which the unit may remain idle.

Southern Company agrees that the scenarios outlined by EPA are reasonable and occur on a regular basis within the electric utility business, and such exceptions to time frames fo r closure should be considered and accounted for in the final rule. Given the variability in demand (dependent upon several factors, such as economic downturn resulting in lower demand,118

fluctuating fuels prices for natural gas, or natural disasters), we su pport and recommend a minimum 2 year period to serve as the basis for such exceptions, with the opportunity to show reasonable cause why exceptions for longer time periods should be considered and granted. The process for requesting such extensions/excepti ons should be well established, readily available, straightforward and easy to apply for.

Also, requiring a utility to initiate closure within 30 days of the final known receipt of CCRs is likely to be problematic for some units depending on the timing an d compliance with the Mercury and Air Toxics Standards (“MATS”), the ELGs and the CCR rules. Utilities, such as Southern Company, may still be assessing potential strategies to comply with multiple
simultaneous environmental rules and will continue to eval uate varying options for future compliance and a diverse fuel portfolio. Therefore, it may be difficult for one utility to predict the outlook of their fuel mix and CCR management needs. And, as EPA is already aware, in a municipal solid waste landfill, cl osure is associated with reaching ultimate disposal capacity, a condition that is envisioned in the closure plan for that facility. Unlike municipal solid waste landfills, the closure of a CCR surface impoundment may now occur at an earlier time than origi nally intended for a variety of reasons besides reaching ultimate disposal capacity, including the compliance with recent and upcoming air, water and solid waste regulations. As a result, existing CCR surface impoundments are not likely to resemble the con ditions envisioned in any previously prepared closure plan. The CCR rule should be coordinated with both the expected MATS compliance deadlines and the potential ELG rules to ensure that any requirement to initiate pond closures allows sufficient time for the utility to prepare or revisit detailed closure plans before closure activities are required to begin. A time period of at least 2 years to gather data and develop detailed closure plans should be allowed, excluding the time for state review and approva l

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency discusses the basis for timing of closure plan development (i.e., 18 months following publication of the final rule) in Unit VI.M.1 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 6 Organization 1 : Southern Company [5DD] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: ii. Options EPA Considers for Completing Closure Must Include Site Specific Characteristics of the Unit Being Closed

Southern Company supports the Agency’s recognition that closure of surface impoundments is different from the closure of a municipal solid waste landfill unit. The NODA also indicates that
EPA understands that clo sure timeframes will differ from unit to unit, and circumstances may require longer timeframes than those proposed by EPA in the tiered approach model. Southern Company agrees that in concept a tiered approach for closure timeframes may be adapted to
work in certain situations, but for those times when a longer time frame will be needed, EPA should allow for a variance process that is easily available and further based on the volume of a119

unit, not strictly the footprint.

In the NODA, EPA referenced project examples or technical papers regarding the length of time required to close a surface impoundment. The references are followed by a discussion of a tiered approach to establishing closure time frames, based upon the size of the unit, citing earlier

commen ters’ suggestions for consideration, in which citations in the docket were given.

Specifically, EPA notes project examples where surface impoundments with footprints of 37 acres, 42 acres and 39 acres were referenced, with each indicating that a 3 year cl osure period
would be needed.

The technical paper reference from the 2013 World of Coal Ash conference referenced a 300 acre impoundment that is estimated to require a closure period of about 4 years. Examples for a tiered approach were discussed, with a suggested period of time based on footprint size, as
follows:

Units smaller than 20 acres 1 year Units between 20 acres and 50 acres 2 year Units between 50 acres and 75 acres 3 year Units greater than 75 acres 4 year

If this suggested tiered approach we re followed inflexibly, then the three referenced project examples presented by EPA in the NODA would not be closed within the specified time period. Each of the three projects would fall under the 20 acre to 50 acre category, which would require
them to b e closed within 2 years. However, as the project owner/operators referenced, each project was expected to take 3 years to complete closure.

Review of the two docket items referenced for the tiered approach appear to be based on a common source, as they bo th referenced the same tiered approach and used the same verbiage in many areas. Closer examination reveals that EPA’s presentation and discussion of the tiered approach overlooked an important statement in the original commenter’s discussion on a tiered

a pproach, that being dewatering. The original statements from the commenter read as follows:

Regarding the deadline for completion of closure activities, EPA should incorporate a tiered approach based on size (in acres) of the existing CCR landfill or exis ting CCR surface impoundment. In the case of existing CCR surface impoundments, the completion time for closure activities should not begin until after operations have ceased and the site has had adequate time to dewater. [Footnote 17: Docket ID No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6424 and
EPA

- HQ

- RCRA

- 2009

- 0640

- 6832 (emphasis added).]

Adequate dewatering of a surface impoundment is one of the more important aspects of the surface impoundment closure, in that the needed grading and construction of a cap cannot

procee d until the impoundment has been sufficiently dewatered and/or stabilized so that the CCR to be covered can support the weight of the required fill and cap.

A tiered approach may be a reasonable basis for a guideline for closure times, but the required120

ti me for closure must not be rigid and should be evaluated on a site

- specific basis. Southern Company would suggest that the timeframe for closure be based on a site

- specific closure plan that will be agreed upon and approved by the state regulator or other regulating entity. This, in effect, will set forth the schedule and the timeframe for having the surface impoundment, or landfill, closed. Furthermore, rather than using footprint size as the basis for each tier, volume (i.e., acre

- feet) may be a better ba sis, as the depth of the pond will significantly impact the time required for dewatering. A 20 acre pond that is 10 feet deep can likely be dewatered and closed much more quickly than a 20 acre pond that is 30 feet deep. This is an example why all units,
d espite the same acreage footprint, cannot be closed in the same exact timeframe. While the commenter’s tiered approach has appeal, the precise basis for distinction and time frames is not clear, recognizing that other factors such as climate, geography and waste disposal unit configuration would also appear to be relevant. Rainfall, evaporation potential and unit configuration will all impact dewatering activities. Future land use will also play an important role in how the facility is closed, thus affectin g the time required for closure. Closure of surface impoundments is a specialized activity, where the contractors or company personnel that will be needed to complete the work must have certain expertise, financial stability, and a record of
health and saf

ety compliance. Especially initially, the availability of qualified engineers, contractors, and materials is likely to be limited while multiple owners and operators across the country will be in need of the same exact resources. This is why it is best for EPA to allow timeframes for closure to be dictated by the site

- specific approved closure plan that may accommodate any other needs that will occur on a site

- specific basis.

If EPA were to choose a tiered approach in closure timeframes based on the size o f the surface impoundments, then it would be appropriate for EPA to establish time frames with a rebuttable presumption to allow for a variance when those specified timeframes cannot be met. For example, the rule could establish a presumption that faciliti es must complete closure within a specified time frame, such as, five years, unless the facility could document certain findings, such as the owner or operator providing written demonstration that closure activities (e.g., eliminating free liquids from the surface impoundment, stabilizing the remaining CCR wastes to support the final cover, constructing the final cover system) are not feasible to complete within the specified time frame. A rebuttable presumption would be a reasonable approach to
establishin g guidelines for closure, with the opportunity for an extension of time due to site

specific conditions. Referencing the tiered approach, it may be reasonable to expect that a 200 acres to 300 acres impoundment could be closed within 4 years, but a 400 acr es to 600 acres pond could take much longer, depending upon actual depth of CCR within the impoundment (i.e., volume), unit configuration, rainfall, evaporation potential and future land use. However, the critical determinations are based on engineering ju dgments based on site

- specific factors and operations; we urge EPA to clarify that the insertion of a legalistic term like “rebuttable presumption” is not intended as an undue hurdle to the establishment of deadlines and requirements that are appropriate t o the circumstances.

EPA received multiple comments from the proposed CCR rule regarding tying the initiating and completing closure timeframes together. EPA stated in this NODA that “Concerns were also raised that the time frames from both initiating and completing closure failed to account for the time needed to obtain any state permits or regulatory approvals that might be needed to conduct certain activities, and that these time frames were incompatible in light of normal operating121

practices.” [18: 78 Fed. Reg. at 46944.] To add additional context in this regard, many owners and operators are somewhat familiar with what to expect from a regulatory review schedule.

However, this experience is based on submittal and review of one to two projects at a tim e. When the regulators receive submittals from multiple owners/operators for multiple plants within a short time period as a response to a new rule, greater uncertainty will be injected into the review and approval schedule. It will be difficult, if not im possible, for EPA or an approved state agency itself to conduct its own review within the time frames proposed for initiating closure and completing closure, and the owner/operator cannot control the time an agency may need for regulatory review within eit her of the two deadlines. There may also be an instance where an administrative decision made during this review process could be legally challenged, which adds further delay to a regulatory decision while potential litigation occurs. Therefore, Southern
C ompany suggests that EPA consider establishing a time frame for initiating closure (that includes design and permitting) and a separate second time frame for completing closure taking this regulatory review process into account. Some form of rebuttable pre sumption for either or both timeframes would be reasonable, allowing for site

- specific conditions and factors to extend the timeframes, if warranted and needed. However, the time for regulatory review and approval
of closure documents should fall between t hese two time periods, as the owner/operator has no control over the time required for regulatory review and approval and should be indeterminate when establishing close timelines. In summary, Southern Company recommends EPA remove from any timeframe the t ime an agency spends to review the permit or closure plan, and EPA should only begin the clock for completing closure at the time the approval is granted from the state or other regulatory body

.

EPA Response : EPA responds to this comment in Unit VI. M .4 o f the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 5 Organization 1 : Commonwealth of Kentucky [5AA] Commenter Type: State Government
Classification: NODA2 Substantive

Comment Excerpt Text: The Commonwealth suggests some version of the tiered approach based on several factors for determining the time to complete closure of the largest category of surface impoundments. These factors might include, size, whether “clean

- closed” or “capped” with waste

- in

- place, site geology, volume of ash, depth to groundwater, time to dewater, and volume of material for the
final cover.

The largest utility in the state, Louisville Gas and Electric/Kentucky Utilities (LG&E/KU), submits the following information:

- 22 ponds store CCR; and

- Using a 35

- acre footpri nt as the dividing line, LG&E/KU has 11 small ponds and 11 large ponds.122

TVA notes that it has one pond of 141 acres, another of 144 and ten smaller than 35 acres.

AEP notes that its pond is 576 acres in size.

The design, permitting and construction coul d generally take about two

- three years for the smaller ponds and five years or more for the larger category of ponds. Regardless, adequate time must be allowed for drainage of largest ponds, such as the one owned by AEP. Construction of
an overfill on undr ained soils could lead to continued loss of soil water and loss of buoyancy support leading to global stability failure.

EPA’s listed closure time examples are under five years, probably because the proposed rule had
a similar timeframe.

On the timeframe , The Commonwealth notes that the ELG proposal is for zero

- discharge requiring dry handling after each plant’s NPDES permit renewal during the cycle beginning July
1. 2017. The timeframe could be about 3

- 8 years from the effective date (or 4

- 9 years from

t oday). The agency should coordinate the CCR disposal rule with the ELG proposal regarding time to begin and end closure of surface impoundments.

H.R. 2218 allows ten years before an unlined surface impoundment must perform groundwater
corrective action. S ee Section (c)(4)(A)(i)(II) of the bill

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble and elsewhere in the preamble

.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 10 Organization 1 : Utility Solid Waste Activities Group (USWAG) [5A] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: USWAG appreciates EPA’s responsiveness to comments explaining why the closure time frames in the 2010 CCR proposal were impracticable and that the time require d to close an impoundment is not simply a function of the unit’s acreage. As discussed below, there are potentially innumerable complications and circumstances beyond the control of the owner or operator that render it nearly impossible to predict with pre cision when the closure of a surface impoundment or landfill will be completed. Therefore, USWAG continues to believe that it is impractical and unrealistic for EPA to subject the closure of CCR surface impoundments or landfills to any type of fixed regula tory deadline.

Given this, we believe the most appropriate regulatory option to ensure the safe and prompt completion for closing CCR surface impoundment and landfills is to allow for closure time frames to be governed by a state

- approved closure process. In many states, regulators take an active role in reviewing, approving and overseeing all relevant aspects of closure. This entails, at a minimum, the preparation of a detailed closure plan that is reviewed and approved by the state. The utility is requir ed to conduct its closure activities in accordance with the closure plan and123

other approvals and remains subject to continuing state oversight throughout the completion of the closure process. Closure would not be complete until the state certifies that al l required actions have been completed. The state

- approved closure process would be included in the utility’s operating record. Under these circumstances, where a state reviews, approves, oversees, and certifies the closure process, there is no need to res ort to the one

- size

- fits

- all closure time frame and rebuttable presumption procedure suggested by EPA.

An adequate state

- approved closure process would include a utility developing and submitting a closure plan to the state and mechanisms for the state to verify and enforce compliance with all closure requirements, including the closure plan. A utility’s compliance with the requirements of
the state

- approved closure process (including following the closure plan, completing mitigation, etc.) would be compli ance with the CCR closure requirements. We have proposed draft regulatory text, § 257.100(k)(1), below to outline this compliance option.

If a particular CCR surface impoundment or landfill is not subject to a state

- approved closure process, then a utilit y could demonstrate compliance with the CCR closure requirements by submitting a closure plan to the state that is certified by an independent professional engineer. This plan would be included in the facility’s operating record. In this case, because ther e is not direct state oversight and administration of the closure process, the timelines in the closure plan certified by an independent professional engineer could be subject to a modified set of tiered time frames for completing closure. Critically, howe ver, as discussed below, these time frames would be targets only and could be readily deviated from as necessary when the owner or operator demonstrates that more time is needed to close the unit. In the proposed regulatory text below, this compliance opti on is § 257.100(k)(2).

Other proposed approaches to setting closure time frames are simply untenable. A firm and inflexible tiered approach will not work because no single factor (e.g., acreage) is determinative in all instances of how long it will take t o complete closure of an impoundment or landfill. Indeed, even time frames in state

- approved closure plans should be more appropriately viewed only as uncertain predictions. See John Seymour et al., Challenges of Closing Large Fly Ash Ponds (Feb. 2013) (no ting many variables and unknown factors that could affect the proposed
four

- year closure time frame for the studied project). Similarly, USWAG agrees with EPA that the idea of petitioning for site

- specific deadlines is also not practicable. 78 Fed. Reg. at 46946. The closure process would be unwieldy and subject to unnecessary delays if facilities had to petition EPA for a site

- specific rule to vary from a generally applicable deadline.

To further illustrate why rigid closure time frames are simply impract icable, we identify below just some of the factors that affect and may delay closure time frames. We also address the closure plans identified in the NODA to highlight that they are not necessarily indicative of the amount of time it will actually take to close those or other similarly

- sized impoundments.

1. Flexibility Is Necessary Because There Are Myriad Factors that May Affect the Time Required to Close a Surface Impoundment and Landfill

EPA acknowledges that there are many independent factors that af fect the time it will take to close a surface impoundment or landfill. Assuming EPA adopts some form of a tiered approach124

with a rebuttable presumption to time frames in circumstances where closure is not governed by

a state

- approved closure process, it is important that the regulatory language be sufficiently broad to allow any number of legitimate reasons to justify a utility’s claim that additional time is needed to safely close an impoundment or landfill. Below is a non

- exhaustive list of factors that

m ay materially affect closure time frames.

(a). State Permitting

Not only can state permitting delay when onsite closure activities can commence, it also can unpredictably affect the time necessary to complete closure. Some states, for example, require

an nual or periodic reviews of closure activities. In these states, regulators can and sometimes do require modifications of ongoing closure activities. Lastly, utilities have little control over when a state will certify that the closure is complete.

(b). V olume of CCR

There is little relationship between the acreage of a CCR surface impoundment or landfill and the volume of water or CCR within it. The depth of CCR at the bottom of an impoundment or depth of water above the CCR can vary greatly from impound ment to impoundment and obviously can affect the time for safely completing closure. For example, the attached projected
closure schedule for a 100

- acre Xcel Energy impoundment anticipates a 54

- month closure period. See Attachment E. The period is shorter than may be expected because the impoundment was being closed well before it reached full capacity and because the water could be pumped into an adjacent impoundment (though the 54

- month closure period does not include the time period necessary to permit a nd construct the adjacent impoundment to receive the water pumped from the closing impoundment). [Footnote 11: In addition, the impoundment was built with a leachate collection system to facilitate dewatering at the end of its life.] In contrast, a surface impoundment of less than 20 acres operated by Luminant is in the process of closing and had a projected time frame of 45 months for work at the site See Attachment F. The utility estimates that, when complete, the full closure period will take approximate ly 84 months due to the unique
circumstances of that closure.

(c).Characteristics of CCR

The characteristics of CCR in an impoundment can vary considerably. In particular, the hydraulic conductivity of the CCR will substantially affect the amount of time necessary to dewater the CCR, how stable it will be as a work surface for construction equipment, and the ease with which it can be moved and contoured. Also, some CCR is more prone to erosion if disturbed than others, which necessitates additional measur es to control total dissolved solids in water draining or being discharged from the site.

Attached to these comments is technical report prepared by the Electric Power Research Institute (EPRI) evaluating the properties of ponded fly ash and the potential for static liquefaction. EPRI, Geotechnical Properties of Fly Ash and Potential for Static Liquefaction (Dec. 2012) (Attachment G). As this report demonstrates, there are many properties of ponded fly ash that are poorly understood, particularly with resp ect to the potential of different fly ash types for static125

liquefaction.

The potential for liquefaction can be an engineering challenge as well as a substantial safety concern for work crews. As explained in the EPRI report, static liquefaction is a pheno menon in which the granular skeleton of a saturated, loose soil matrix loses its strength during undrained shear, resulting in the flow of the granular mass if not restrained. Safe closure of a fly ash surface impoundment requires that time be allowed for release of porewater pressure that builds up as a result of adding fill to attain new surface grades, such that over time the closure advances with no risk of unrestrained flow. Following the guidance of the Characterization of Ponded Fly Ash and Fly Ash S torage Facilities that is contained in Section 5 of the attached EPRI report, regulators and facility owners/operators will be able to take into account engineering data compiled from a site

- specific assessment of a facility’s ponded ash that can be used i n determining the time required to safely and effectively close a CCR unit.

An important point in the EPRI report is that, while fly ash is generally not prone to static liquefaction, site

- specific conditions such as the fly ash characteristics, local sat uration, anisotropy, and chemical diagenesis (light cementation) present special circumstances that must be taken into account during site closure to ensure that the rate of loading is appropriate for site

specific geotechnical conditions. Rapid loading co uld lead to fly ash instability under accelerated closure conditions. Therefore, it is important that closure time frames account for ash characteristics and the potential for liquefaction.

(d). Climate and Weather

Climate can be a factor in closure time lines, especially in colder regions. Extreme cold and wintery conditions limit the time that onsite closure activities can occur in some areas to warmer months. For example, synthetic cap seaming cannot be done and vegetation cannot be planted in freezing weather. Shorter work seasons decrease the time available to complete closure.

As with any large

- scale construction project, extreme weather and other force majeure events can be unpredictable factors that can impact closure times. It is also important to consider that many CCR surface impoundments are associated with drainage basins. In extreme localized rain events or during unusually rainy periods, dewatering activities may be impeded by an excess of

stormwater.

(e). Availability of Qualified Engineers , Contractors, and Materials

Closing a surface impoundment or landfill is a specialized activity. There is a limited supply of qualified engineers, contractors, and raw materials necessary to close these units. These resources may not always be readily av ailable, and a utility may have to wait until a qualified engineer or contractor becomes available to work on a closure. Likewise, certain clays, soils, and other necessary materials may be in short supply at any given time. We anticipate these problems
wi ll be exacerbated if the final CCR rule causes a number of impoundments to close in the same
time frame.

(f). Geology and Land Usage126

The geology and previous uses of a site can play a significant role in the amount of time necessary to close an impoundme nt or landfill. These factors will affect, among other things, the materials that will be necessary to complete closure, the amount of fill that will need to be obtained, the nature and degree of final contouring that will be required, and the need for any
post

- closure water treatment for leachate or stormwater (especially if the site formerly was a mine and acid mine drainage is an issue).

(g). Dam Hazards

As discussed above, fly ash may be prone to static liquefaction in some circumstances. It may
there fore be necessary to ensure that adequate measures are taken so that a failure does not occur during or following closure. Impoundments classified as dams therefore present additional engineering challenges to ensure that a structural failure does not occu r during or after closure.

(h). Ongoing Facility Operations

Surface impoundment and landfill closures are simplest when the generating facility has ceased operation. However, in many instances, closure activities will be occurring while the facility

cont inues to operate. This presents a host of other logistical problems that can delay closure. Additional complexity is introduced if a facility must coordinate closure with, for example,
conversion to wet

- to

- dry ash management, construction of replacement wa stewater treatment capacity, or other methods to replace disposal capacity. These other elements cannot be segregated from the “closure” process as they are intimately tied to the continual operation of the facility.

(i). Clean Closure

In some instances, a utility may elect or be obligated to “clean close” an impoundment. This process entails the dewatering and removal of all the CCR from the impoundment. The CCR will either be diverted to beneficial use or disposed of in a landfill. The logistics of dewa tering and removing potentially the entire volume of CCR, not to mention closing the site following removal, mean that this closure method can take a dozen or more years to complete. This is an environmentally beneficial closure method and any time frames should have sufficient flexibility
to allow for clean closure

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 11 Organization 1 : Utility Solid Waste Activities Group (USWAG) [5A]
Comm enter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: EPA noticed two closure plans: (1) Coal Combustion Waste Impoundment Dam Assessment127

Report, Martins Creek Steam Electric Station, PPL Generation, Bangor, Pennsylvania and (2) a proposed plan to close two surface impoundments at Santee Cooper’s Grainger Generating Station. 78 Fed. Reg. 46946. The PPL impoundment was 37 acres, and the two Santee Cooper impoundments were 42 and 39 acres. In each case, the Agency notes that there was a three

- year estimated closure schedule. While these closure plans are informative, they are not necessarily indicative of the actual time to close these or other similarly

- sized impoundments.

It is important to first recognize that the noticed closure plans are pre

- closure proposed time frames, not actual reflections of the time it has taken to close these units. They reflect the estimates of consulting engineers and are qualified in each instance that actual time frames may vary due to unfores een or variable conditions. Closure plans often acknowledge the existence of unknown factors or leave parts of the plan open for later determination. See e.g., Challenges of Closing Large Fly Ash Ponds (noting that studied closure plan left ash dewatering methods, surface stabilization method, and other decisions in the discretion of the contractor). USWAG members report that unknown variables inevitably delay closure work such that closure activities are rarely completed within the estimated time schedule set forth in pre

- construction plans. [Footnote 12: In fact, some closure plans outline very detailed closure requirements without tying them to a schedule. See e.g., Consumers Energy Company, J.R. Whiting Plant, Final Cover System Report for Ash Ponds 3, 4 , and 5 (Attachment H); Consumers Energy Company, J.C. Weadock Revised Closure Plan (Attachment I); Dairyland Power Cooperative, Plan of Operation, Sec. 6, Site Closure and Long

- term Care (Attachment J).]

The three

- year closure time frames in each of thes e plans also reflect only an estimate of the time it takes to complete the onsite work. These three

- year periods do not include the time necessary to develop and obtain regulatory approval for a closure plan. Likewise, these plans do not include any estima te of the time period for projects to receive certification that closure is complete. Thus, the noticed closure plans should not necessarily be viewed as evidence that these, or other similarly sized impoundments, can commence and complete the full closure process within three years.

As evidence of this point, attached to these comments are the final Construction Summary Report for the Martins Creek Steam Electric Station Ash Basin # 4 Closure and related documents, which demonstrate that it can take longe r to complete closure than is predicted in closure plans. The Martins Creek proposed closure plan was one of the closure documents included in the NODA. At Martins Creek, the utility had to obtain approval for a modified closure plan, three modified permit s, and various local planning approvals because the associated boiler had been prematurely closed before the impoundment had reached its expected capacity. Several of the permits and approvals were subject to public notice and comment.

The impoundment cea sed receiving wastewater in January 2008, and the closure work began shortly thereafter with dewatering the basin and preparing the revised closure plan and permit modification applications. Capping, final soil grading and seeding of the entire ash impound ment were not completed until Spring 2012. The vegetation had reached an acceptable level by end of128

2012 so that the water runoff from the basin could be directed to the storm water outfall. By early 2013, all the remaining closure actions were completed, and by Spring 2013, closure documentation was provided to state regulators for their final approvals of the closure. Regulators issued these final approvals in July 2013. Notwithstanding the noticed closure plan’s prediction that the closure of this roughl y 40

- acre impoundment would take only three years, it was nearly five years before the closure was certified. See Advanced GeoServices, Construction Summary Report, Martins Creek Steam Electric Station Ash Basin #4 Closure (May 2013) (Attachment K); Letter from Pa. Dep’t Envtl. Protection to PPL Services Corp. (July 2, 2013) (Attachment L).

Indeed, the Martins Creek closure could have taken much longer. The state issued the utility interim approvals that allowed certain construction activities, including d ewatering and grading, to commence prior to final approval. It took two years for all approvals to be granted. If the utility had not been granted interim approval, the time for closure would have been extended out two years further. Furthermore, the utili ty implemented closure activities under interim approval at its own risk. It could have been required to redo parts or all of that work if the final approval required a different approach.

3. Flexibility Is Needed for Landfill Closure Too

As explained ab ove, many of the uncertainties associated with closing a surface impoundment also apply to completing the closure of a landfill. As is the case with surface impoundments, there are many are factors beyond the control of a utility that could delay final clo sure, such as material shortages, weather events, state permitting delays, the design of the unit, the need for an updated topographical survey, the bid process with contractors, and the development of a final closure report with detailed QA/QC data. There fore, it is absolutely essential that if landfill closure is subject to a suggested regulatory time frame for completing closure (i.e., the closure is not covered by a state

- approved closure process), the owner or operator should be able to readily

deviate from the regulatory target if it is not practical to achieve closure by the target date.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 12 Organization 1 : Utility Solid Waste Activi ties Group (USWAG) [5A] Commenter Type: Trade Association
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.1

Comment Excerpt Text: Based on the discussion above, USWAG has prepared suggested regulatory text outlining when a CCR landfill or surface impoundment should initiate closure and the process for determining when a unit should complete closure. In circumstances where the so

- call ed “tiered approach” is
used

— i.e., when a unit is not closing pursuant to the state

- approved closure process described
above

— we have suggested more realistic tiered time frames based on member input and closure129

plans (attached hereto) demonstrating that EP A’s suggested time frames are not realistic.

We also understand that EPA’s suggested tiered time frames were drawn from the suggestions of a commenter on the proposed CCR rule. [Footnote 13: See 78 Fed. Reg. at 46946, n. 10, referencing docket items EPA

- H Q

- RCRA

- 2009

- 0640

- 6424 and EPAHQ

- RCRA

- 2009

- 0640

- 6832.] Those comments, however, stated that the proposed time frames should not commence for a surface impoundment until it has been dewatered. However, EPA’s proposed time frames apparently would begin to ru n before dewatering an impoundment is complete, which is inconsistent with the comments suggesting the tiered approach. To correct this oversight, USWAG’s proposed regulatory text lengthens the tiered time frames to allow a reasonable time for dewatering t hat will be sufficient in some (but by no means all) cases.

In addition, USWAG’s proposed time frames run from date when all necessary state and local approvals have been obtained. As explained above, in some states, the process of obtaining approvals, wh ich must be completed before onsite closure work can commence, can be a lengthy and unpredictable process. Closure plans are generally subject to state review and approval. Closure plans developed during the preconstruction permitting phase of an impoundme nt or landfill may not be relevant years later when an impoundment or landfill commences closure due to changes in construction practices, regulatory requirements, and the actual condition of the unit. Closure activities at an impoundment or landfill canno t begin until all necessary state and local authorizations are issued. In some cases, this process involves public notice and comment or an opportunity for persons to challenge approvals through citizen suits, both of which may substantially extend the tim e needed to obtain approval. A utility can initiate the administrative and regulatory process of closing an impoundment or landfill in a timely manner, but it has no control over when that process is complete and site work can begin. Accordingly, USWAG’s

p roposed tiered time frames do not start until all approvals necessary to commence closure have been obtained. [Footnote 14: To be clear, if the closure is subject to a “state

- approved closure process,” then a utility should be able to demonstrate complianc e with the CCR rule by complying with the state approved closure process rather than the tiered time frames in the suggested regulatory text.]

Third, there is great inherent uncertainty in basing CCR surface impoundment or landfill closure
time frames on impoundment acreage. Acreage is a grossly imprecise metric to determine probable unit closure times, as total volume of a particular unit and many other factors can dictate the time needed for completing closure. Acreages also can vary greatly, and it is d ifficult to capture meaningful size differences within tiers. For example, First Energy’s 950

- acre Little Blue Run Disposal Area surface impoundment (which has a 15

- year projected closure period)
falls in the same tier as a 75

- acre impoundment. First Energ y, Major Permit Modification Application (Mar. 29, 2013) (Attachment M). For obvious reasons, the challenges and practical time frames for closing such differently sized impoundments are extremely different.

Finally, the “tiered” approach must allow for a facility to readily deviate from the presumptive time frames for closure when necessary to properly and safely close the unit. Furthermore, this
demonstration should not be a one

- time unchangeable event. Uncertainty and unknown factors beyond a utility’s control often substantially affect work on an impoundment or landfill closure project once it has begun. Therefore, owners or operators undertaking closure should be able to130

readily revise their determinations if circumstances change.

Below is suggested r egulatory text for outlining the conditions for initiating closure and the processes for ensuring the completion of closure.

SUGGESTED TEXT FOR INITIATING CCR UNIT CLOSURE:

40 C.F.R. § 257.100 Closure Criteria

. . . .

(j) (1) Subject to paragraph (2) o f this subsection, the owner or operator of a CCR landfill or surface impoundment must commence closure activities thirty days after the final known receipt of a waste the unit is permitted to manage or within thirty days after the conclusion of the
functi ons authorized for such surface impoundment or landfill as set forth in a state

- approved operating plan or other state authorization, whichever is later.

(2) If the CCR landfill or surface impoundment has remaining capacity and there is a reasonable
likel ihood that the unit will resume managing a waste, the unit must commence closure activities within two years after the most recent receipt of waste. This period may be extended in two year increments provided the owner or operator demonstrates in a written certification to the facility’s operating record and relevant state agency, at expiration of the initial two year period and every subsequent two year period as applicable, that the owner or operator has a reasonable belief that the unit will resume manag ing a waste.

SUGGESTED TEXT FOR COMPLETING CCR UNIT CLOSURE:

40 C.F.R. § 257.100 Closure Criteria

. . . .

(k) The owner or operator of the CCR landfill or surface impoundment must complete closure
activities

(1) As authorized by state authorities in a ccordance with a state

- approved closure process that is included in the facility’s operating record, or

(2) In accordance with a closure plan certified by an independent professional engineer that is included in the facility’s operating record and provide d to the relevant agency, and after obtaining all necessary state and local authorizations necessary to commence closure operations,
as follows:

(A) For an impoundment with an area less than 20 acres, within three years,

(B) For an impoundment with an ar ea of 20 acres or more acres but less than 50 acres, within five years,131

(C) For an impoundment with an area of 50 acres or more acres but less than 75 acres, within eight years,

(D) For an impoundment with an area of 75 acres or more, within ten years,

(E) For a landfill, within 180 days, or

(F) At a later date if the owner or operator demonstrates in a written submission to the facility’s operating record and relevant state agency and certified by an independent professional engineer
that the time fram es in paragraphs (k)(2)(A) to (k)(2)(E) are not feasible to complete closure activities as set forth in the closure plan.

. . . .

(n) This section shall not apply to a CCR surface impoundment that ceases to receive waste in preparation for being converte d into a landfill as authorized by a state authority

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0063

- 1 Organization 1 : Geosynthetic Institute [5LL] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: As understood, there are two issues requested by the U.S. EPA with respect to CCR units. The “first” focuses on the time frame for closing surface impoundments in the Subtitle D option. We
feel that the geoenvironmental and geosynthetic design and construction industries are fully capable of implementing the draft regulations. This obviously holds for the dry disposal but is also applicable to the wet (slurried) disposal although the techniques are a dmittedly more challenging insofar as time and cost are concerned

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 2 Organization 1 : Florida Electric Power Coordinating Group Inc. (FCG) [5Q] Commenter Type: Trade Association
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.1

Comment Excerpt Text: As EPA recognized, the closure requirements for CCR surface impoundments do not account for the complexities of operating CCR s urface impoundments and coal

- fired powered plants in132

general. See 78 Fed. Reg. at 46944. The FCG supports revisions to the Proposed Rules to extend the timeframes for initiating and completing closure of CCR surface impoundments and landfills. [Footnote 2: While the NODA seemingly seeks comment on the closure timeframes for CCR surface impoundments, the FCG’s comments are equally applicable to the closure timeframes for CCR landfills.] Such revisions should provide flexibility for states and facilities to f actor in regional variances and site

- specific conditions. The state of Florida has extensive experience regulating the operation and closure of CCR surface impoundments and CCR landfills under power plant site certification orders and conditions, and NPDES permits. Notably, there have been no reported off

- site impacts to the environment associated with the operation of CCR surface impoundments or landfills in Florida. The state of Florida, therefore, is well

- equipped to implement a CCR regulatory program th at is protective of human health and the environment.

At the outset, it is worth noting that the proposed definition of “CCR surface impoundment” is overly broad and may be interpreted to include numerous facilities and structures that are critical
to the management of various process water and wastewater streams that are generated throughout a coal

- fired power plant. Such facilities and structures are more appropriately governed by permits issued pursuant to other regulatory authorities, such as the Clean Water Act (“CWA”). As defined, a CCR surface impoundment may be interpreted to include ponds and impoundments that receive numerous industrial wastewaters that are routinely generated within a power plant facility, such as boiler washes, cooling water, co oling water blowdown, and flue gas desulfurization (“FGD”) blowdown. Additionally, the proposed definition of CCR surface impoundment may include ponds and impoundments that receive process and wastewaters that are reused in air pollution control systems. These wastewaters contain only de minimis amounts of CCRs and are wholly different from the sluiced CCRs that are the focus of the surface impoundment provisions in the Proposed Rules. [Footnote 3: For a full discussion of the ramifications of EPA’s propos ed definition of CCR Surface Impoundment, see FCG’s comments on the Proposed Rules, Docket No. EPA

- HQ

- RCRA

- 2009

- 0640, available at htto:llwww.regulations.gov/#!documentDetail:D=EPA

- HO

- RCRA

- 2009

- 0640

- 10498.]

EPA Response : In regard to timeframes to initia te and complete closure of a CCR unit, EPA
addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0064

- 4 Organization 1 : Florida Electric Power Coordinating Group Inc. (FCG) [5Q] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: The FCG also agrees with EPA that it is not feasible to complete closure of a CCR surface impoundment or landfill within 180 days of starting closure activities. There are a multitude of regional and site

- specific factors that influence the time necessary to complete appropriate closure of a CCR surface impoundment or landfill. This is particularly true for the closure of CCR surface impoundments which require extensive dewatering to ensure stability of the final cover mechanism. The length of time necessary for dewatering depends upon the volume of the impoundment, regional and site hydrogeology, and local weather conditions. This activity alone133

may well exceed 180 days. Other activities, such as geot echnical analyses, stormwater analyses and related construction, and obtaining necessary state and local permits, add more uncertainties to the time needed for closure. Based on recent FCG member experience, it is not unreasonable to expect the closure of a 30 acre CCR impoundment to take approximately 2 years to complete. FCG member experience with CCR landfill closure has similarly demonstrated the need for a period of time greater than 180 days to complete closure activities. The Florida Department of

En vironmental Protection (“FDEP”) has required FCG members to submit extensive design drawings, liner system specifications, construction quality assurance plans, and detailed stormwater calculations, including the construction of additional conveyance struc tures, when closing a CCR landfill. Developing this information and subsequent implementation of all
closure

- related requirements takes considerable time.

A one

- size

- fits

- all approach to the closure of CCR surface impoundments and landfills will not provi de sufficient flexibility to accommodate site

- specific complexities and ensure the development of a protective closure plan. Accordingly, a site

- specific closure plan should be developed in conjunction with the state regulatory agency that establishes appr opriate timeframes for implementation and completion. Of the timeframe options proposed by EPA in the NODA, however, the FCG prefers the rebuttable presumption approach whereby facilities are required to complete closure of CCR surface impoundments and lan dfills within five years,
unless it is documented that closure within that timeframe is not feasible

.

EPA Response : EPA addresses these issues in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0065

- 4 Organization 1 : Basin Electric Po wer Cooperative (Basin Electric) Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 4.4.8.2.1

Comment Excerpt Text: While Basin Electric understands the EPA’s desire for the timely closure of waste management units, a “one size fits all” approach is not appropriate (and usually never is). Basin Electric envisions many scenarios where utilities may not have the need to place CCRs in landfills or surface impoundments for extended periods, including plant outages and plant idling due to temporary excess generation or economic issues. Basin Electric suggests utilities demonstrate, in writing, their plans and timeframes for returning idled facilities to operation. Further, if the proposed rule is eventually promulgat ed, facility owner operators would have a financial incentive to bring about the timely closure of their facilities, reducing financial assurance liabilities for closure and post

- closure care.

EPA acknowledges that comments on the CCR proposal “confirms t he commenters’ claims that the time frames originally proposed to complete closure of surface impoundments will be practicably infeasible for the largest impoundments” [Footnote 13: Id.] and that EPA will need to establish different deadlines for closure, at least for the larger units. EPA is examining closure

related information for CCR surface impoundments to determine “whether there are consistent time frames or other factors that EPA could adopt as part of the regulations.” [Footnote 14: Id.]134

Further, EPA acknowledges that the tiered approach has appeal but states that other factors beyond size (e.g., climate, geography and unit configuration) can influence closure time frames. EPA seeks comment on “ways to establish categories of time frames that take into consideration the various factors affecting the amount of time needed to properly close a surface impoundment, and encourages commenters supportive of a tiered approach, to provide the rationale and data to support any suggested categories of time fra mes.” [Footnote 15: Id.at 46946]

Basin Electric supports a reasonable approach to closure timing, based on unit size, geotechnical properties, and climatic conditions. Many of Basin Electric’s facilities are located in the northern plains region; closure during the extreme winter months is not technically feasible due to sub

freezing temperatures and frozen soils

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0066

- 6 Organization 1 : Arizona Public Service Company (APS) [5R] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: APS continues to believe the best approach for establishing a closure time frame in the final rule is to specify tha t such time frames be set forth in a state

- approved or independently certified closure plan, as a closure plan is the best instrument to embody the array of site

- specific factors that must be considered in ensuring that a structure is closed as promptly as possible, and in a manner that is environmentally sound. If EPA nonetheless selects a “tiered” approach for closure based on the size of the facility, it is absolutely essential that such time schedules only serve as regulatory targets and that a particul ar facility be allowed to demonstrate through an uncomplicated mechanism that the time frames applicable to that facility should be readily adjusted to account for site

- specific circumstances as set forth in a state

- approved closure plan or a plan certifie d by an independent professional engineer.

APS’s experience with surface impoundments has shown that closure can take many years to complete. Dewatering alone is a time consuming process fraught with technical challenges. Setting unreasonable time frames to complete facility closure will require the application of unproven or excessively expensive technical solutions without a commensurate increase in the level of protection for human health or the environment. A site

- specific closure plan and time
line is necessary to provide a durable, long

- term closure that is protective of human health and the environment while minimizing future maintenance. APS supports the “Established Time Frames with a Rebuttable Presumption” approach suggested by EPA. Furthermore, APS believes the rule should grant states, such as Arizona, the flexibility to determine closure time frames in conjunction with other state regulatory requirements, such as an Aquifer Protection Program or a Dam Safety program

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.135

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 10 Organization 1 : American Electric Power (AEP) [5FF] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text:
Given the disparity in the sizes of surface impoundments, the length of time necessary to dewater, stabilize the area, and place the final cover over the impoundment, AEP strongly recommends that if USEPA ends up requiring closure that USEPA not establish a specific time frame for closure. Instead, we urge USEPA to require utilities that have to close any CCR surface impoundments do so consistent with a closure plan approved by a state. Establishment of a closure plan is the most effective method to account for the m any variables associated with the closure of these units and is the approach commonly used by utilities. A closure plan also will provide USEPA and the public with certainty that closure will occur in a step

- wise and timely manner, without requiring facili ties to comply with wholly unrealistic closure time schedules. Finally, it must be recognized that closure schedules included in the state

- approved closure plan are estimates that may vary due to unforeseen or variable conditions and unknown factors.
Facto rs may come into play, such as weather conditions, permitting time frames, or additional time needed to safely stabilize the impoundment for closure activities. Therefore the allowed time must be subject to change

.

EPA Response : EPA responds to this comm ent in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 13 Organization 1 : American Electric Power (AEP) [5FF] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive
Other Sections: 3.8.2.5

Comment Excerpt Text : On December 22, 2008, TVA’s Kingston Ash Facility failed when the level of the sluiced ash in the dredge cells achieved elevation of 816 feet. The root cause analysis (RCA) of the ash pond failure at the Kingston facility was conducted by AECOM [Footnote 2 : Walton, BiD. “Kingston RCA, Kingston Dredge Cell Failure, Root Cause Analysis”. AECOM. June 29, 2009.] with independent review performed by Dr. Gonzalo Castro. The RCA team performed a very comprehensive gathering of information both on the history of th e facility and on the “wreckage” of the failure and included numerous field and laboratory sampling and testing programs. The team concluded that four principle factors had interacted and led to the failure of the facility, as shown in figure 1 below.

[Se e original attachment for Figure 1: Kingston Dredge Cell Failure Conditions]

These factors can be placed in the following broad categories that are applicable to all CCR impoundments that will drive the time of safe implementation of both an impoundment c losure and an “overfill” over a closed CCR impoundment:136

The nature of the CCR product and Its placement

- -

CCR impoundments were created for the wet disposal of the product and by design the materials have been placed by hydraulically conveying it to th e facility. The material is therefore found in a saturated and uncompacted state. The geotechnical characteristics of CCRs have a very large range that is associated with many factors including coal origin, boiler type and chemical composition, etc. Bachus and Santamarina (2012) (1) conducted a very comprehensive investigation of the geotechnical properties of fly ash, the nature of the fly ash particles and their response to loading.

CCR products’ response to loading and rate of loading

- -

Amaya et al. rNOCA 2013) [Footnote 3: Pedro Amaya, Donald Fuller, Jeffrey Oingrando, Vik Gautam, James Moseley, Paul Sabatini, Nicholas Perrotta, Christopher Hardin. “Evaluation of Uquefaction Potential at Fly Ash Storage Reservoirs”. WOCA2013.] applied important findi ngs of the work by Bachus and Santamaria (2012) to the design of four fly ash impoundment closures with different fly ash materials and depositional environments. The work of Amaya et al. shows that while some material perfonnance properties of fly ash can be generalized, site specific sampling and testing is often required for the assessment of the behavior of CCRs under
load.

The work presented by Amaya’s team indicated that the specific fJyash considered in their work did not exhibit a “brittle” respons e, i.e., there were no substantial difference in the peak and post

peak undrained shear strengths during triaxial testing, and that those fly ash specimens did not exhibit a strong contractive response to loading. There are, however, fly ash materials that may exhibit diagenetic cementation, and as a result, there may be a critical load or strain that could lead to a sudden collapse of the initial structure of a fly ash deposited in an impoundment, which if ignored during design or construction efforts asso ciated with a closure or overfill implementation, could lead to localized or even widespread instability.

The deposition of wet fly ash into an ash reservoir results in significant stratification taking place during initial sedimentation. The resulting la yered structure will exhibit anisotropic properties.
This stratification

- induced heterogeneity will impact permeability of the material as well as the rate of pore pressure dissipation. The rate of pore pressure dissipation is governed by the
coefficient o f consolidation, a function of hydraulic conductivity and matrix compressibility, and the rate of load application. Therefore, the time for pore pressure dissipation to occur is specific to the fly ash material, the degree of stratification that took place during sedimentation, the type of natural soils lining the boundaries of the reservoir and the overall geometry of the reservoir (3). Consequently, the rate of pore pressure dissipation necessary to complete the proposed work safely is very difficult to a ccurately predict apriori.

Likewise, uncontrolled construction or development activities may lead to relatively “quick” loading and the rapid buildup of pore water pressure in the fly ash, which in tum can also result in instability.

Bozok, et al. (2013) [Footnote 4: Orner Bozok. Paul J Sabatini. Pedro Amaya. •Use of137

Instrumented Test Fill to Assess Static Liquefaction of Impounded Fly Ash.• WOCA. 2013.] indicated that an average degree of consolidation of 82 percent was achieved in 60 days for an impound ment with a thickness of fly ash from 100 ft. to 120 ft. The rate of loading of a reservoir depends on the proposed closure sequence and the magnitude of fill necessary to achieve desired grade elevations. Bozok, el al. (2013) reported that a rate of loadi ng of 0.5ft/day would be sufficiently slow to allow significant pore pressure dissipation in fly ash.

Ajlouni (2013) [Footnote 5: Mohammad A. AjIouni. and Gary F. Zych. “Monitored Preload Fin Over an Inactive Fly Ash Reservoir.” WOCA. 2013 6 John Seymour. Steve Macrowski. Pedro Amaya. “Challenges of Closing Large Ay Ash Ponds”. WOCA. 2013.], based his work on the monitoring of a preloaded fill on a fly ash impoundment, conducted as part of the development for a CCR landfill. Ajlouni’s work has shown that a n average rate of loading of 1.5ft/day was used successfully in the construction of the preloaded fill without inducing a failure in the supporting saturated fly ash.

The work performed by Amaya’s team supports the observations made by Bachus and
Santamar ina (2012), Wolfe (2012) and others in that the response of ponded fly ash to loading is a function of several unique and individual characteristics of the material and its containment facility. The design of engineered works proposed in connection with cl osures and overfills at CCR impoundments facilities need to account for the specific fly ash response to static and dynamic loadings, both the magnitude and the rate of loading.

CCR products containment structure and geographic setting

--

The characteris tics of the containment structure and the surroundings at CCR impoundment facilities offer unique challenges to both the closures of the impoundments and to development of overfills that are not necessarily a function of the size of the facility but a func tion of its
geometry, e.g., up

- ground containment vs. cross

- valley fill, upstream vs. downstream construction, and the geology and history of the setting. Seymour, et al. (2013) 6 discussed many
of the constraints that can affect the closures and overfills at CCR impoundment facilities

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 5 Organization 1 : American Electric Power (AEP) [5FF] Commenter Type: Electric Utility Company
Classifi cation: NODA2 Substantive

Comment Excerpt Text: • Agree that the best approach to establishing a closure time frame in the final rule is to specify
that such timeframes be set forth in a state

- approved or independently certified closure plan, since a closure plan is the best instrument to embody the arr ay of site

- specific factors that must be considered in ensuring that a structure is closed as promptly as possible, and in a manner that is environmentally sound. If USEPA nonetheless selects a “tiered” approach for closure based on
the size of the facilit y, it is absolutely essential that such time schedules only serve as regulatory targets and that a particular facility can readily demonstrate that the time frames for that facility138

need to be readily adjusted to account for site

- specific circumstances as set forth in a state

approved closure plan or a plan that is certified by an independent Professional Engineer. AEP has more specific comments on this aspect of the rule and those are presented towards the end of
this document

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 7 Organization 1 : American Electric Power (AEP) [5FF] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text:
• Act on US EPA’s recognition that closing a surface impoundment within 210 days of the cessation of CCR disposal (Subtitle D) or within two years of cessation of CCR disposal (Subtitle C) will be impossible in many situations. Closure may be accomplished either throu gh CCR removal and decontamination of all affected areas or by closure leaving the CCRs in place. For large surface impoundments, it is not practicable to accomplish closure through CCR removal. To close with the CCRs in place, free liquids must be removed , the remaining CCRs must be stabilized to a bearing capacity sufficient to support the final cover without settlement concerns, and the final cover placed. It is not uncommon for AEP ash impoundments to have surface areas of 100 to 300 acres and a length of 5,000 feet or more. It can take several years to remove liquids and stabilize a surface impoundment to the point where a final cover can be placed without settlement concerns, and state permitting to authorize implementation of an approvable design take s time, which must be considered in any timeline. Closure procedures could include the installation of wick drains for liquid removal and/ or the preloading of the ash with 20 to 100 ft of soil/rock material over several years to properly consolidate the a rea for final cover placement. The cost to dewater such large areas is estimated at about $100,000 per acre. The cover system must consist of a 1.5 foot clay layer and 6 inches of topsoil and be sloped a minimum of 2% to 5% for positive surface drainage. T o construct a cover system that provides positive drainage over such large surface areas would require, in some cases, 8

- 10 million cubic yards of fill. Based on a production rate of 10,000 cubic yards of fill per day, it would take 800 working days to con struct the fill. Since earthwork in many parts of the country is limited to about seven months per year, it could take four to five years to complete the fill. Additionally, the production of millions of cubic yards of such fill from natural sources is not without its own environmental impacts. So, to require surface impoundments to close within 210 days (Subtitle 0), or even two years (Subtitle C), from the date of receipt of the final CCRs is simply not possible for large impoundments.

Another issue to t ake note of is that, because these rules will require that a large number of utility surface impoundments be closed nationwide during roughly the same time frame, utilities will have difficulty obtaining the personnel and equipment necessary to close multi ple sites, especially since other companies will need to obtain the same resources at the same time. Furthermore, due to the Significant volume of clay that is needed to cover an impoundment,
hundreds of acres in size and the likelihood that other units ma y need to close in the same time frame, there may be insufficient supply of ready

- to

- use clay. The proposed rules do not allow for139

any alternative liners, so selected clay must be used if the final rule does not change. Moreover, in some circumstances, sta tes may not be able to provide final approval of a facility’s closure plan before the end of the closure time limits, putting facilities in automatic noncompliance through no fault of their own, but due simply to limited state resources

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble. In addition, the Agency considered the fill example provided by the commenter in developing

the timeframes for closure.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0068

- 5 Organization 1 : Consumers Energ y Company [5II] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: • Consumers Energy believes that the new risk data from the ELG ICR do not indicate, per the proposed CCR rule, that surface impoundments must be presumptively closed in order to protect public health and the environment and, therefore, the discussion of various factors that influence the specification of a timeframe is moot. However, Consumers Energy will comment below on the issues raised by E PA with respect to landfill closure timeframes

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0068

- 7 Organization 1 Consumers Energy Company [5II] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: • The tiered timeframe approach as a function of utility size discussed in the NODA provides a potentially useful concept for approximating closure time for landfills of var ying size. However, there are numerous factors other than landfill size that also affect the time required for closure:

o Regardless of size, dewatering and dissipation of pore pressure are material and site

- specific
considerations that are vital to the s tructural stability during the construction period of closing the surface impoundment. Any timetable must provide sufficient flexibility through monitoring to allow staged construction to be finalized. Good engineering practice dictates that frozen CCRs

an d soils should never be placed in any structural landfill as waste or to complete construction of the overlying final cover. The length of the construction season decreases from south to north
and with elevation. The number of frost

- free days for a localit y can be determined from agricultural and weather records and can be used as a modifier in a tiered model.

o Sites vary in the logistics and infrastructure required to transport closure materials through the site and into portions of the impoundment/landf ill for closure. It is extremely difficult to cross some sites with large earthmoving equipment. Transportation models are available that can140

identify logistical constraints and provide an estimate of the impact of these constraints on the
closure timetabl e.

o It seems desirable to use the constraints above (and perhaps others) to provide an approximate estimate for closure a priori to reduce the number of factors that would have to be considered under a variance or rebuttable presumption. The key element, however, and the most difficult to predict, is the time required for dewatering and pore pressure dissipation

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0069

- 6 Organization 1 : Ameren Missouri [5L] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: We believe that the best approach to establish a closure time frame for CCR surface impoundments and landfills is to specify that the closure p rocedures and schedules be addressed
in a state

- approved closure process that is included in the facility’s operating record or in a closure plan certified by an independent professional engineer. These approaches offer the best
mechanisms to accommodate t he array of site

- specific factors and unpredictable complications that must be addressed in ensuring that a structure is closed in a manner that is environmentally
sound

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Commen t Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0070

- 5 Organization 1 : Ameren Energy Resources Company, L.L.C (AERC) [5K] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: We believe that the best approach to establish a closure time frame for CCR surface impoundments and landfills is to specify that the closure procedures and schedules be addressed
in a state

- approved closure process that is included in the facility’s operating record or in a closure plan certified by an independent professional engineer. These approaches offer the best mechanisms to accommodate the array of site

- specific factors and unpredictable complications that must be addressed in ensuring that a structure is closed in a manner that is environmentall y sound

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0071

- 3 Organization 1 : Great River Energy (GRE) [5J] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive141

Comment Excerpt Text: Similarly the timeframes to complete closure need to be adequate so that numerous site specific factors can be accounted for. These include the timeframes for local and state permitting 3

- 5 years, size of the unit, volume of the unit, characteristics of the CCRs, climate and weather, availability qualified vendors and materials, and on

- going/proposed facility operations

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0072

- 1 Organization 1 : PMI Ash Technologies, LLC (PMI) [5T] Commenter Type: Beneficial User
Classification: NODA2 Substantive

Comment Excerpt Text: In discussing the closure of impoundments and landfills receiving CCPs, EPA proposes initiation
and completion time frames. PMI is focused on beneficial use of coal combustion products
therefore comments from PMI on a closure timeframe is not within our mission.

However, PMI urges EPA to consider several issues as it considers setting closure deadlines.

First and foremost, EPA has stated that it favors beneficial use of fly ash in concrete. Fly ash in impoundments and landfills can be beneficiated and re

- used in this encapsulated use. PMI’s CBO technology can process ash that has been landfilled or pond ed. All of the current CBO
facilities have received ash from off

- site plants, processing more than the ash production that was available at the power plant where the technology is installed. With the proper incentives, the technology could be used further to reclaim fly ash from existing landfills and ponds.

Today it is difficult to get sources, funding and contracts to recycle this material. In the long run, placing these ashes in another sub

- title D landfill instead of in concrete is a waste and an
unint ended consequence of this protracted rulemaking. The markets need the ash, the local economy needs the jobs and revenue, and the environment needs us to be better stewards with our limited landfill space.

One way for EPA to achieve this goal would be for EPA to create incentives. For example, EPA could create an incentive which would defer deadlines for closure of an impoundment or landfill if a source reduces its net tonnage by a set amount, such as 10,000 tons per year, if the fly ash is used as a partia l replacement for Portland cement. There are numerous ways to create incentives as EPA has demonstrated in numerous rules over the years. EPA needs to take a leadership role in digging our niche industry out of the rough patch it has partially created. The prolonged life for closure allows the substantial beneficiation investment which recycles the fly ash for use as a partial replacement for Portland cement in concrete to occur. This also provides greater investment certainty, in the event that the power p lant closes, there would still be ash available from the impoundment or landfill available for processing and marketing.

Former EPA Administrator Jackson stated to PMI that she sought to encourage the recycling of142

such ash from a source such as a pond or landfill into an encapsulated use. These time frames fail to take into account the potential for beneficial use of CCPs currently contained within disposal units. By placing strict restraints on the initiation and completion of closure of CCP disposal
unit s, EPA would be pre

- empting opportunities for reclaiming these materials for beneficial uses that would greatly reduce potential impacts on human health and the environment.

Other CCPs currently placed in disposal units may have potential for reclamation and processing prior to beneficial uses. Since many millions of tons of CCPs have been placed in disposal facilities over several decades, there is a vast inventory that may be eligible for beneficial use. EPA’s proposed regulations will provide the utilit ies with the real cost of responsible disposal for new CCP production and the real cost of remediation and closure for historical CCP production. These costs, once assimilated by the utility, along with the closure timeline could produce a significant chan ge in recycling behavior from the utilities. EPA has the singular choice to turn these sites into reclamation opportunities, possibly eliminating numerous sites, or burying the recycling opportunity forever. It would be a serious miscalculation to set clos ure rules that would eliminate beneficial use opportunities, without incenting and exhausting all opportunities

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0073

- 10 Organization 1 : Tennessee Valley Authority (TVA) [5I] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: • Numerous variables can affect the actual time it takes a facility to close a CCR management unit. Flexibility is needed to ensure that closure takes place in a manner that is both reasonable and protective of the environment. Climatic conditions and dewatering of the ponds are examples
of variables that can take a considerable amount of time. These variables would ne ed to be factored into the time needed for safely completing closure.

• There is little relationship between acreage of a CCR surface impoundment and the volume of water or CCR within it. The depth of the CCR at the bottom of an impoundment or depth of

wa ter above the CCR can vary greatly from site to site.

• From a practical standpoint, it is unrealistic to apply closure timeframes given in RCRA landfill regulations

— which relate to the dry handling of material managed and closed in a phased

manner

— to the closure of wet impoundments, which can take longer due to the additional time needed to dewater and stabilize saturated CCR material and secure regulatory approvals. Thus, the time frames for impoundment closure suggested in the Proposed CCR Rule are unre asonably short. While localized topography will dictate the actual amount of fill needed to meet slope to grade requirements for closure of each impoundment, given the size and volume of materials involved, the RCRA landfill closure time frames are inappro priate when applied to wet impoundments.

• In addition, we believe coordination with both solid waste and water regulatory agencies allows143

for site specific closure protective of the environment.

• A closure schedule should be governed by a state

- approve d closure plan developed and certified by a registered professional engineer

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0075

- 5 Organization 1 : National Rural Electric Cooperative Asso ciation (NRECA) [5S] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: • Closure time frames for CCR surface impoundments and landfills should be derived from the facility’s closure procedures and schedules as addre ssed in a state

- authorized closure process that is included in the facility’s operating record or in a closure plan certified by an independent professional engineer. This approach will accommodate the array of site

- specific factors and unpredictable compl ications while assuring that a structure is closed promptly yet in an environmentally sound manner.

EPA’s suggested “tiered” approach for closure based on the size of the unit should only be used only as a default and in circumstances where the closure of a unit is not covered by a state

authorized closure process. Any time frames should only be regulatory targets that could be readily adjusted to account for site

- specific circumstances

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0076

- 3 Organization 1 : Nebraska Public Power District (NPPD) [5N] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text:
The Nebraska Public Power District is inter ested in the EPA considering the concept of having a
“site

- specific” deadline for closure. While we do not believe a variance process should be required, we NPPD does suggest the rule for closure be site specific and implemented by requiring a “site closur e plan”. The site closure plan should be submitted by a registered professional engineer and submitted to the permitting authority.

For example, the Nebraska Public Power District (NPPD) submitted a written closure plan for
one of its ash landfills. The l andfill was approximately a 10 acre site. NPPD provided written notification to the Nebraska Department of Environmental Quality (NDEQ) 180 days prior to the date it expected to begin implementation of the closure plan (placement of final cover). This
info rmation was placed in the operating record onsite. NPPD also notified NDEQ in writing, the date when the final volume of fly/bottom ash would be placed in the ash pit. NPPD began144

implementation of the closure plan within 30 days of receipt of the final vol ume of fly/bottom ash. Closure activities were completed within 180 days after the final volume of fly/bottom ash is placed in the ash pit. The NDEQ was provided a written notification when the closure was completed. NPPD had an independent Professional En gineer, registered in the State of Nebraska, submit a certification to the NDEQ, verifying that closure has been completed in accordance with the approved closure plan. Within 90 days following the installation of the final cover system, NPPD had a permane nt notation recorded on the deed at the county Register of Deeds, indicating the existence of a closed fossil fuel ash pit on the property. This information was also provided to the NDEQ and placed in the ash pit operating record

.
EPA Response : EPA respon ds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0079

- 5 Organization 1 : Xcel Energy [5W] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: The time frames EPA provided in the proposed rule are impractical, untenable and likely unachievable for most operations given various regional conditions such as climate and weather, geologic and hydrogeologic, permitting processes, ongoing facility operations, engineering and
techn ological considerations for the management of CCR and other regulated/permitted materials. Other considerations include changes in construction practices, regulatory requirements, or actual condition of the unit to be closed. EPA should allow closure time frames to be established through the permitting and operation and closure planning processes of the state agencies or closure plan certified by an independent professional engineer. A closure plan is the
best instrument to consider the site

- specific factor s to ensure that a structure is closed in a manner that is economically viable and environmentally sound. Closure would not be completed until verification that all required actions identified in the approved or certified closure plan have been completed. The actual time frame for completion could be several years until a facility receives a closure approval from the regulating authority or State Agency.

From our recent experiences, in association with decommissioning a facility, the overall time
frame for closure of impoundment and landfill operations can easily take over four years, for projects that are considered relatively straight forward and in a favorable regulatory environment, given that the closure requires planning, permitting, design and implem entation, regulatory Commission approvals, and state approvals.

If EPA nonetheless selects a “tiered” approach for closure based on the size of the waste management unit, it is absolutely essential that such time schedules only serve as regulatory
targets and that an uncomplicated mechanism exists whereby a facility can demonstrate that the closure time frames for that waste management unit need to be adjusted to account for site

specific circumstances as set forth in a state

- approved closure plan or a pla n that is certified by an independent professional engineer

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.145

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 5 Organization 1 : Dominion Resources Services, Inc. [5P] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: As stated in the NODA, the Agency has recognized that the proposed time frame for closure of 180 days is “practicably infeasible”. Through the proposed rule’s comment period , the Agency has become more familiar with the complexities and inter

- related operational issues with closing a CCR surface impoundment. The Agency is soliciting feedback on three approaches and any others that could ensure that closure will protect human health and the environment. The first option describes establishing time frames for specific category types. As an example, some commenters recommended a tiered approach for closure based upon the unit’s size and volume. This approach would be inexact and place facilities into too tight of a schedule to close their units. The Agency recognizes this fact when it identifies other factors such as climate, geography, and unit configuration that need to be accounted for in any selected time frame. We
would also add regulatory review and public participation process as two other significant factors that will affect closure time frames. We do not support the proposed tiered approach due to the numerous site specific variables involved with a CCR unit closure that a re not addressed in this approach.

The Agency then describes a deadline with a variance approach where a specific deadline for closure is identified (e.g., 5 years) and facilities are provided with a variance process that can be
invoked in the event that site specific characteristics extend the closure period beyond the deadline. The variance would be addressed by a site

- specific rule via a petition process. This approach has greater appeal and flexibility to address the unknown conditions of a closure

pro cess than the tiered approach described above. However, the petition/variance process will take time to implement and may need to occur repeatedly m the event that timing or conditions throughout the closure process change.

The third option discussed is a time limit with a rebuttable presumption, where closure must occur within a specified time period (e.g., 5 years) unless the facility can provide a demonstration that additional time is necessary. Of the three options, the rebuttable presumption option be st addresses the uncertainties and moving targets that occur throughout a CCR unit closure process. Therefore, we primarily endorse this third option.

In the NODA, the Agency references three closure plans in an effort to place some context
around the siz e of a CCR impoundment and the length of time required for closure. Upon review of each document, it appears that two of the three cases in the docket are proposed timeframes for closure and not actual timeframes. In other words, the plans reflect estimate s from consulting engineers and not actual real life experienced timeframes from a historical closure that would
have encountered the real

- life variables for project delays such as regulatory approvals, public participation/intervention, weather/climate, e quipment/material availability, construction issues, etc. that invariably extend the time frame of these projects. In at least two of the three examples, ash introduction has ceased in the impoundment and so closure can presumably occur without146

affecting t he continual operation of the plant. This fact alone will drastically hasten the closure time of the impoundment versus facilities that are attempting to balance other site operational issues with the impoundment.

Finally, the timeframes identified in the closure plans only reflect the traditional closure elements of dewatering, stabilization, leachate collection system, cover, and vegetation. They do not consider the sequential nature of implementing a wet

- to

- dry ash management system, constructing replac ement wastewater treatment capacity, and replacement disposal capacity. These other elements cannot be segregated from the “impoundment closure process” as they are intimately tied to the continual operation of the facility. While the engineered closure of an impoundment may take 4

- 5 years, the construction of replacement wastewater treatment capacity may take 5

- 6 years and the siting, engineering, permitting, construction, and preparation for operation of a landfill may take 8

- 10 years or more. All of thes e integrated operational elements need to considered when discussing the “impoundment closure process”. Based upon the above, we recommend that any CCR unit closure requirements allow sufficient flexibility to account for any integrated operational element s such as constructing alternative wastewater treatment and disposal capacity.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0084

- 6 Organization 1 : MidAmerican Energy Holdings Company (MidAmerican) [5G] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: In the original CCR proposal, EPA proposed completion of CCR management unit closure within 180 days of initiating such closure. [Footnote 17: Id. at 35253, proposed to be codified at 40 CFR §257.100(k).] As identified in the NODA, EPA acknowledges that this timeframe is inadequate and must be adjusted, particularly for larger units. [Footnote 18: 78 Fed. Reg. at 46945.] MidAmerican believes that EPA?s newly proposed tiered approach for closure with respect to footprint [Footnote 19: Id. at 46946.] is also not realistic. The area footprint of the management unit does not adequately reflect the volume of CCR contained therein, and vice

versa, t he volume of CCR in a management unit does not adequately reflect the area to be closed. Both area and volume must be considered in developing a closure completion timeframe. Additionally, site

- specific issues, such as the abutment of a CCR management unit to U.S. Army Corps of Engineers levees, may affect the timeframe due to necessary permitting and coordination. Therefore, a process must be in place to address site

- specific issues such that

facilities are not forced into an unrealistic or unachievable cl osure timeframe given the site

specific circumstances.

MidAmerican believes that if a tiered approach is included in the final CCR rule, EPA must extend the proposed timeframes to establish a more realistic closure schedule. EPA must also provide some mec hanism where a facility can account for an alternative closure timeframe based

on site

- specific criteria such as climate, geography, CCR management unit configuration, and147

permitting coordination with other interested parties. To ensure that closure takes place in a manner that is reasonable and protective of the environment, the closure timeframe should be identified in a closure plan certified by an independent registered professional engineer. This approach would allow for the numerous site

- specific vari ables that can affect the actual time it takes a facility to close a CCR surface impoundment or landfill.

To the extent that closure plan approval and permitting are required, facilities are unlikely to receive such approval, let alone complete closure, w ithin EPA?s prescribed timeframe of 180 days. MidAmerican believes that facilities should be required to develop site

- specific closure plans certified by an independent registered professional engineer which contain a closure timeframe to commence upon reg ulatory approval of the plan. The closure timing would be established in the operating plan of the CCR management unit and entered into the operating record of the facility. These certified closure plans should be required to be approved by the permitting authority as expeditiously as practicable. The closure timeframe established by the independent registered professional engineer and approved by the permitting authority should supersede any general regulatory closure deadline established by EPA.

A prescr ibed regulatory closure deadline based on CCR management unit size, as proposed by EPA in this NODA, is only tenable if facilities are able to petition for an alternative closure

deadline based on site

- specific factors. This petition process will allow fac ilities to deviate from a specific closure deadline based on a demonstration that an alternative timeframe is necessary to safely and properly close the unit and to account for independent factors affecting the time it will take to close a CCR management u nit. Facilities should be able to periodically revise their determinations if circumstances change. EPA should structure sufficiently flexible closure completion requirements in the final CCR rule to allow for the myriad of reasons an alternative

timeframe for closure may be necessary.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0086

- 2 Organization 1 : Dynegy Inc. (Dynegy) [5V] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: The NODA requests comment on the time frames for surface impoundments to complete closure. 78 Fed. Reg. at 46944. 46945. As recognized by EPA, the time frames originally proposed to complete closure of surface impo undments (i.e., a maximum of seven months) are “practically infeasible for the largest impoundments.” 78 Fed. Reg. at 46945. Size of the impoundment, however, is not necessarily the sole or determinative factor that makes the originally proposed
time frame s for completing impoundment closure unrealistic and unachievable. Thus, while we appreciate that EPA now understands that the originally proposed seven

- month closure period is not feasible, we continue to believe that EPA should not establish a specific “ one size fits all”148

deadline to complete closure of surface impoundments or otherwise establish inflexible deadline tiers to complete closure that are tied solely to surface impoundment size.

As Dynegy explained in its comments on the Proposed CCR Rule, th e time needed to complete closure of a CCR surface impoundment is dependent on many different site

- specific factors. These factors include the water level in the impoundment; the volume, type and composition of CCRs in the impoundment; the age of the impou ndment; the method of CCR conveyance; the geometry of the impoundment; and the condition of the impoundment berm and liner. For large active surface impoundments with significant water levels, dewatering activities (including the engineering, installation, and monitoring of a dewatering system) necessary to enable construction of a cap/final cover may take more than one year. In addition to dewatering, closing a surface impoundment would involve initial engineering investigation, design and analysis of
the closure system; site stabilization and monitoring, as needed; installation of a soil crown; acquiring and transporting large quantities of clay cover, which may not be available nearby; transporting and installing large areas of synthetic liner; significan t earthmoving work; and securing the specialized labor and equipment/materials required to perform these activities. These activities may be interrupted and delayed for relatively significant periods by adverse
and/or seasonal weather conditions.

In flexi ble closure deadlines also fa il to account for several other key factors that can affect the time period needed to close a surface impoundment. First, any inflexible closure deadline does not consider that permits or other regulatory approvals may need to be obtained before any closure activities are commenced. For example, in Illinois, Dynegy’s legal authority to perform closure activities will be subject to obtaining permits or approvals from the Illinois EPA and, depending on the nature of the closure a ctivities, permits or approvals from the Illinois Department of Natural Resources, the U.S. Army Corps of Engineers and/or the U.S. Fish and Wildlife Service. Delays in obtaining anyone the needed permits or approvals (including the possibility of de lays caused by third party appeals of those permits/approval) may make compliance with any fixed closure deadline impossible. Second. inflexible closure deadlines fail to recognize that, because the Proposed CCR Rule will likely require many surface impoundment s to close at essentially the same time, delays may be caused by the inability to secure specialized labor and resources.

Inflexible closure deadlines also fail to account for the difficulty of one company trying to close multiple sites/impoundments at th e same time. For example, Dynegy has over twenty active ash pond cells that would have to be closed or retrofitted under proposed Subtitle D. Given the large size of some of these active cell s (up to approximately 240 acres) and that these cells are frequ ently operated as part of an even larger single ash pond system (i.e. , combined cell area can reach 600 acres), closing all these cells on the same schedule is not practical. Importantly, inflexible closure deadlines also ignore the fact that operational

- ready alternate landfill facilities (as well as alternate wastewater treatment systems to address low volume non

- CCR wastewaters that are currently directed to the CCR surface impoundments) would be required before closures of existing surface impoundments can commence. Given the time necessary to plan and design such needed replacement systems, investigate the technical and environmental suitability of the site, acquire additional land (where needed), and develop, permit, and construct such capacity. adequ ate dry disposal capacity may not be available in the proposed deadlines and the149

construction demands of concurrently providing adequate dry disposal replacement capacity (and alternate wastewater systems) at multiple facilities would be very burdensome. A ny closure deadlines should account for the compounded workload effect associated with simultaneously managing multiple landfill construction projects and multiple projects to close or retrofit existing surface impoundments.

For all of these reasons, Dyne gy continues to believe that EPA should not establish a specific “one size fits all” deadline for closure of surface impoundments. Instead, the final CCR rule should require closure plans to include a closure schedule that achieves closure as soon as

reaso nably possible, as approved by the state (or, in the absence of a state permitting authority, verified by a registered professional engineer and included in the facility ‘s operating record). However, it is essential that any approach to closure completion deadlines in the final CCR rule provide for flexibility to address the many factors that impact actual closure schedules, including changes that occur during the closure process. To that end, a rule that establishes rebuttable presumption time frames (sub ject to facility demonstrations in its operating record that the time frames are not feasible) for completing closure that are, in the first instance, tiered to impoundment size would be a more reasonable approach than establishing a separate “variance”

pe tition process to EPA

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0087

- 2 Organization 1 : NiSource Corporate Services [5Y] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: NIPSCO is concerned with, and opposed to, setting a timeframe or deadline for completing closure of CCR disposal units. Since NIPSCO utilizes many impoundments primarily for water management, but which may be defin ed as CCR waste disposal units, a clean out or closure of these units may be required in order to continue using them for water management related functions. It has been NIPSCO’s experience that securing liner material from the limited number
of manufactur ers and scheduling qualified installers can require a significant lead time. In addition to these limiting factors, in much of the nation there is a relatively short season within which liner installation can be completed. If all CCR management units natio nwide are given a specific deadline for closure or for compliance with more protective standards, it is foreseeable that many utilities will experience difficulty or even find it impossible in meeting such regulatory
deadlines. With hundreds of acres of im poundments at three separate facilities, NIPSCO anticipates that meeting the proposed compliance deadlines will be difficult, at best

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0088

- 1 Organization 1 : Arizona Electric Power Cooperative, Inc. (AEPCO) Commenter Type: Electric Utility Company150

Classification: NODA2 Substantive

Comment Excerpt Text: The closure time frames for CCR surface impoundments and landfills should not be a “one siz e” fits all approach. AEPCO successfully closed its original combustion waste disposal facility in 2005. That closure process took years to develop and receive approval by multiple state agencies. The closure was carefully managed by an outside engineering firm and closed as described in the approved closure plan

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0090

- 5 Organization 1 : FirstEnergy [5GG] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: 6. FirstEnergy continues to believe the best approach to establishing a closure time frame in the final rule is to specify that such timeframes be set forth in a state

- appro ved or independently certified closure plan, as a closure plan is the best instrument to embody the array of site

- specific factors that must be considered in ensuring that a structure is closed as promptly as possible, and
in a manner that is environmental ly sound

.

EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0091

- 3 Organization 1 : Texas Coal Combustion Products Coalition (TCCPC) [5JJ] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: The length of time required for closure of surface impoundments (and landfills) is highly variable based on many factors including review and approval time required by a state agency, the approach to closure, the p hysical properties of the material in the impoundment and activities such as dewatering that may be required, seasonal weather considerations, and operational considerations at active plant locations.

Again, TCCPC believes that EPA should defer to existin g state programs. Where state programs do not exist, TCCPC recommends that EPA’s closure timeline for a surface impoundment begin only when all the state and locally required approvals for initiating closure are received. Additionally, TCCPC recommends, ab sent a state program, that the EPA’s time line for closure range from 3 to 10 years based on impoundment size in acres

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.151

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 8 Organization 1 : Duke Energy [5B] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: EPA acknowledged that it will need to establish different deadlines for completing the closure of surface impoundments, at least for the l arger units. EPA stated in the NODA the concern that
“due to the self

- implementing nature of the regulations, it is possible that the owner or operator could unilaterally decide to extend closure activities longer than necessary or that would be protective .” [Footnote 15 See Federal Register Volume 78, No. 149, August 2, 2013 at 46945.] Duke Energy believes EPA’s concern is unfounded and does not justify the arbitrary or inflexible closure time frames that EPA is contemplating. There is little reason for ut ilities to delay closure because there is little incentive for utilities to needlessly draw out closure activities. EPA’s proposed solution removes all flexibility needed to address complex closure issues, many of which are plant specific.

Duke Energy rec ommends that EPA not adopt the tiered closure approach, as proposed in the NODA based on size of the impoundment. Duke Energy supports a regulation that requires the owner of a surface impoundment to submit its application for closure with a schedule for

c ompletion to the appropriate state regulatory agency for review and approval. This will allow a state agency to issue permits or approvals that address all site

- specific issues including a proposed schedule for closure. Flexibility to address site

- specific issues will also ensure that
owner’s are not forced to take short

- cuts in order to meet deadlines but will have the time to address all unique concerns in the most cost effective, safe, and environmentally

- sound manner.

In the states in which Duke Energ y operates, some agencies issue permits or approvals for the surface impoundment closure and post

- closure plans. For impoundments that only have Clean Water Act (CWA) permits, the process is similar to submitting a landfill application for a permit
to prot ect groundwater. It allows the owner to address site specific issues and provides an opportunity to include a proposed schedule for completion. EPA must understand the complexity of what it takes to close a surface impoundment. Simply proposing a cookie

- c utter approach for the completion schedules for the closure of these impoundments is inappropriate. Using Duke Energy’s recommendation will engage the state regulatory agency for oversight and inspection all the way through the completion of the closure an d the post

- closure period (up to 30 years). During this period the owner will be subject to frequent site inspections, required notifications of specific activities (i.e. start of sub base construction, start of liner installation, etc.), compliance

repor ting, and record keeping.

Closure and post

- closure plans are sometimes required by the state’s regulatory agency to be submitted with an application for a new impoundment, one that allows the owner to construct and operate the impoundment to comply with N PDES discharge requirements. These closure plans are more generic in nature and are generally used to establish financial assurance. These plans often require resubmittal to the state’s solid waste office for additional review to address long term ground w ater protection issues once impoundments are removed from their intended152

purpose of treating wastewaters. Most states will not require closure or post closure plans in the original application for a NPDES discharge permit issued to construct and operate
im poundments. Those states require the owner to submit the closure and post closure plan applications at a designated time period when the impoundment is expected to be removed from service. These permits to construct and operate are issued by the regulators in the state’s water office, and the closure and post closure plans are submitted to the state’s solid waste office to focus on the long term ground water protection issues associated with the CCR remaining in the impoundment. Regardless of when the plans are developed or submitted, the state’s solid waste regulatory agency is involved in approving the final plan and schedule for completion. They are provided all appropriate information in order for them to make informed decisions necessary to insure groun d water protection. Moreover, the states have oversight over the closure activities so that they are completed in the appropriate time frame and prevent any unreasonably delays.

Closure plans must be completed on a schedule that assures safety and stabili ty.

Duke Energy believes that closure plans should be developed with careful consideration regarding safety and best engineering practices. The electric utility industry has spent significant time and money researching the specific engineering issues asso ciated with appropriate closure of CCR surface impoundments. The electric utility industry has the most experience and expertise in developing and implementing closure of both small and large impoundments where CCR is closed in place or removed in clean cl osure activities. Duke Energy’s engineers contend that mandatory time frames in regulations for the completion of closure, such as those proposed in the NODA, fail to provide the flexibility to manage the site

- specific safety and stability issues
that are unique to each CCR surface impoundment. Duke Energy believes that EPA should not require the completion of closure to be solely based on acreage (size) nor volume. Careful and
site

- specific planning is always necessary to address safety concerns for the c onstruction workers in order to avoid any potential failure to address the stability issues (liquefaction potential) associated with CCR sluiced wet into the impoundment before it was removed from service. Safety of the project is directly tied to the stab ility of the CCR in the impoundment regardless of size, stability must be addressed through adequate dewatering and carefully placing an even load on the surface with dry materials to reduce differential settlement and to create the base. The
surface must be shaped with a minimum slope of 2% at an elevation above the impoundment
berms so that the storm water controls can collect and divert all storm water from the impoundment once the final cap/liner system is installed. The impoundment can vary in shape

an d construction. It can be elevated with berms around all sides. It can be an incised pond. It can be a valley fill that has a dam, or combination of all three. The point is that all these different types of impoundments, regardless of the size and the dept h of CCR fill have the potential for failure if liquefaction issues are not addressed in the design and construction of the final cap

structure.

The Electric Power Research Institute (EPRI) has published and provided EPA with state

- of

- the

art science on t he potential for liquefaction of CCR placed in surface impoundments. That report was developed in part with funding from Duke Energy and other electric utility companies. EPRI submitted that report titled “Geotechnical Properties of Flyash and Potential fo r Static Liquefaction 2012 Technical Report” to EPA earlier this year. [Footnote 16 See “Geotechnical Properties of Flyash and Potential for Static Liquefaction” submitted by EPRI to Mr. R.153

Perciasepe on March 25, 2013 Docket No. EPA

- HQ

- RCRA

- 2009

- 0640.] EP RI is also developing technical documents to address both the environmental and engineering issues associated with the closure of surface impoundments and the construction of new landfills and surface impoundments over closed surface impoundments. The comp lete version of these documents will not be available to provide to EPA because of the short 30 day comment period provided. EPRI will be providing a condensed version in the form of a technical brief to be submitted to EPA within this comment period.

Clo sure plans must be developed and completed on a schedule based on best engineering practices and construction methods

There are several factors that can have a significant impact on construction schedules and completion of closure. These include but are n ot limited to: weather, equipment availability, availability of constructor workforce, and materials used for construction. With state review of the proposed schedule for a closure project, all contingencies can be reviewed and approved by the states to pr event delays.

Regional climate dictates the length of the construction season. Rain and freezing temperatures may cause a longer scheduled time for construction. Construction seasons will vary across the
nation with some as short six months. The construct ion of the sub base for the cap system is also weather dependent. Issues such as proper compaction of the sub base materials cannot be achieved during rain or freezing temperatures. Synthetic geomembrane liners cannot be installed
in inclement weather or f reezing temperatures and they are subject to availability from the manufacturer. There are extremely long lead times for the liner materials because they are manufactured according to buyer specifications. Moreover, because of the amounts needed, the
manuf acturer must adjust production and inventory to meet the needs of their largest orders. With new regulatory requirements for all utilities we expect delays to increase significantly.

The closure of a large surface impoundment requires the movement of sign ificant amounts of materials for constructing the sub base of the cap system. For example, a closure project for a
350

- acre impoundment would require approximately 10 to 11 million cubic yards of fill to construct and shape the sub base of the cap structur e to achieve the appropriate slope for storm water controls across the entire surface of the impoundment. The average on

- road truck can haul approximately 25 cubic yards of soil which means that it will take approximately 425,000 truckloads of soil to comp lete the project sub base and another 64,000 truckloads to deliver the 1.6 million cubic yards of soil for the vegetative layer for the top of the cap system. The time needed in the schedule to deliver and place the volume of materials for sub base and lin er construction could take upwards to 9 to12 years. Another issue for consideration is whether additional steps for remediation of groundwater impacts would be required.

The best approach to regulate the completion of a CCR closure project when considerin g the innumerable variables that can affect the time it takes to close a site is through a site

- specific schedule reviewed and approved by the state regulatory agency. If EPA elects to go forward with a tiered approach, Duke Energy requests that closure ti me frames be based on reasonable deadlines which should be presented as rebuttable presumptions, which would allow utilities to readily deviate from such presumptions when necessary to complete closure.154

As discussed above, Duke Energy believes that the be st approach is for a closure schedule to be set forth pursuant to a state

- approved or independently

- certified closure plan. The closure plan is the appropriate place to address all of the site

- specific factors that must be considered in ensuring
that a str ucture is closed as promptly as possible, and in a manner that ensures worker safety and stability of the impoundment. Consistent with the Subtitle D self

- implementing approach, EPA could require that such plans be submitted to the state for approval. The y then could be placed on a publicly available internet site. Duke Energy disagrees with any “tiered” approach based on the size of the facility. EPA’s evaluation of this option does not take into account the variety of factors that can delay closure, and it is underscored by the fact that it is simply not possible to establish a fixed time schedule for the completion of closure of a CCR impoundment, even in a tiered manner for those units that are relatively similar in size. Therefore, if EPA pursues the

“ tiered” approach for setting forth time frames for completing closure, it is absolutely essential that such time schedules serve only as regulatory targets. A particular facility should be allowed to demonstrate through an uncomplicated mechanism that the closure time frames ought to be adjusted to account for site

- specific circumstances

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0096

- 2 Organization 1 : Texas Commission on Environmental Quality (TCEQ) [5CC] Commenter Type: State Government
Classification: NODA2 Substantive

Comment Excerpt Text: The EPA’s proposed rule under the RCRA Subtitle D option required that the CCR landfills and surface impoundments be closed within lS0 days foll owing initiation of closure activities.

The TCEQ agrees with the numerous comments received on the proposed rule regarding the impracticability and infeasibility of completing closure of the CCR management units within the
180

- day timeline. AB the EPA’s N ODA and Request for Comment acknowledged, there are many factors, including the site’s operational practices, site physical features and complexities, and market conditions, that influence the closure of CCR management units. The TCEQ supports a tiered app roach, based on the size of a CCR management unit, as the basis for the deadline to complete closure activities for CCR landfills and surface impoundments. The EPA’s NODA and Request for Comment includes proposals received from some commenters on such a ti ered approach that can be grouped under four categories: (1) units smaller than 20 acres would be subject to a one

- year deadline to complete closure; (2) units between 20 and 50 acres would be subject to a two

- year deadline to complete closure; (3) units b etween 50 to.75 acres would be subject to a three

- year deadline to complete closure; and (4) units greater than 75 acres would be subject to a site specific deadline to complete closure. The TCEQ supports consideration of such
a tiered closure schedule and recommends that a provision be added to provide flexibility for States to approve additional extensions to the deadline based on a case

- by

- case review and complexity of the site conditions. Towards this, the TCEQ recommends a revision to 40 CFR §257.100(k ) in the proposed rule to include provisions for the owner/operator of a CCR surface155

impoundment or landfill to request an extension to the unit’s closure schedule beyond the timeframes proposed in the tiered approach

.
EPA Response : EPA responds to this c omment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0100

- 1 Organization 1 : SCANA Corporation Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: The Time Frames to Complete Closure section of the Federal Register notice references
comments received via docket Item EPA

- HQ

- RCRA

- 2009

- 0640

- 6832. The section included the docket comment’s suggestion of a “tiered approach” for closure of landfills and surface impoundments, including a propo sed schedule based on the facility size (i.e., units between 20 and 50 acres would be subject to a two year deadline to complete closure). SCANA is the author
of docket EPA

- HQ

- RCRA

- 2009

- 0640

- 6832. SCANA’s comments suggested a tiered approach
and schedule a s discussed in the August 2013 NODA, but also included very important associated language regarding site dewatering time that was excluded from the NODA. Specifically, the following is SCANA’s EPA

- HQ

- RCRA

- 2009

- 0640

- 6832 comment:

“Regarding the deadline fo r completion of closure activities, the EPA should incorporate a tiered approach based on the size (in acres) of an existing CCR landfill or existing CCR surface impoundment. In the case of existing CCR surface impoundments, the completion time for
closure activities should not begin until after operations have ceased and the site has had adequate time to dewater. For example:

Closure Area (acres): Less than 20 Completion Time (Months): 12

Closure Area (acres): 20 to 50 Completion Time (Months): 24

Closu re Area (acres): 50 to 75 Completion Time (Months): 36

Closure Area (acres): More than 75 Completion Time (Months): Site Specific

Included in SCANA’s docket comments, but excluded from the NODA, is discussion that the above tiered approach completion tim es schedule is for closure after operations have ceased and the site has had adequate time dewater. The time necessary to dewater surface impoundments after operations have ceased will vary widely and sites may require months and perhaps even years to dewa ter

— depending on the facility and CCR mass, existing site and geologic conditions, weather, and site specific engineering measures.156

To further expand, the tiered approach completion times schedule presented in SCANA’s docket
comments was intended for the construction phase of the closure, and was not intended to include time for dewatering as well as time to obtain all necessary state and federal approvals. In some states, the process of obtaining approvals can be a lengthy and unpredictable process.
Closu re plans are generally subject to state review and approval. Closure plans developed during the preconstruction permitting phase of an impoundment or landfill may not be relevant years later when an impoundment or landfill commences closure due to changes in construction practices, regulatory requirements, and the actual condition of the unit.

Please note that closure activities at an impoundment or landfill cannot begin until all necessary state and local authorizations are issued. In some cases, this pro cess involves public notice and comment or an opportunity for persons to challenge approvals through citizen suits, both of which may substantially extend the time needed to obtain approval. A utility can initiate the administrative and regulatory process of closing an impoundment or landfill in a timely manner, but it has no control over when that process is complete and site work can begin.

While SCANA appreciates EPA’s consideration of a tiered closure approach and proposed closure completion time sched ule, we would only find the approach acceptable if adequate time provisions were included for pre

- closure work including dewatering, development of closure plans, and obtaining all necessary state and federal approvals

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0102

- 1 Organization 1 : Electric Power Research Institute (EPRI) [5EE] Commenter Type: Trade Association
Classification: NODA2 Substantive

Comment Excerpt Text: Section IX(A) of the NODA stated that US EPA is seeking additional comments on the feasibility of complying with the pond closure time frames in the 2010 CCR Proposed Rule. EPRI previously submitted information related to pond closure time frames to the CCR Proposed
Rule docket on March 26, 2013. However, because the docket was not officially open for comments at that time, we are resubmitting those comments in response to the specific request in this NODA, along with additional information on a pond closure guidance docum ent we are developing.

US EPA initially proposed a relatively short time frame of 7 months from initiation to completion of closure activities. In the NODA, US EPA acknowledged that this time frame did not adequately account for the complexities associate d with closing CCR impoundments. We agree with this assessment, and suggest significantly more flexibility is required to safely close these facilities. CCR ponds vary significantly in site

- specific characteristics such as age, size, design, CCR geotechnic al characteristics, construction details, and hydrogeologic environment. At larger sites in particular the schedule can be driven by the need for extensive dewatering and surface stabilization activities, as well as handling and placement of large volumes of grading materials, before the final cap can be constructed. These pre

- capping activities, which are not157

required to the same extent at typical dry landfills, may take several years each to complete. It is important to develop closure timelines that acco unt for these site

- specific variables when designing and implementing a pond closure plan. This makes it difficult to establish a single time frame appropriate for all facilities, or even tiered time frames based solely on site size. We suggest that closur e time frames should be established in the final closure plan developed by professional engineers and geologists after a complete geotechnical and hydrogeologic analysis of the site, and design of final grades.

Safety is the primary goal in ash pond closu res, both for the general public and for on

- site personnel working on the closure. Toward that goal, EPRI worked with geotechnical experts at the Georgia Institute of Technology, Geosyntec Consultants, and power companies to compile fundamental geotechnica l engineering properties of fly ash, and used that information to assess the potential for hydraulically placed fly ash to undergo static liquefaction or significant loss of strength upon undrained loading. The final report from that work

— Geotechnical Prop erties of Fly Ash and Potential for Static Liquefaction: Volume 1 Summary and Conclusions (EPRI, 2012)

— is Attachment A to these comments.

Static liquefaction is a phenomenon in which the granular skeleton of a soil matrix consisting of saturated, loose, uniformly

- sized particles loses its strength during undrained shear, resulting in the flow of the granular mass if not restrained. Safe closure of an ash pond requires that time be allowed for release of porewater pressure that builds up as a result of add ing fill to attain final surface grades, such that over time the closure advances with no risk of unrestrained flow. Section 5 of the attached EPRI report provides a set of tools for taking into consideration engineering data compiled from a site

- specific assessment of a facility’s ponded ash that can be used in establishing the time required to safely accomplish the closure of that facility.

While fly ash is generally not prone to static liquefaction, site

- specific conditions such as the fly
ash character istics, local saturation, anisotropy, and chemical diagenesis (light cementation) present special circumstances that should be taken into account during site closure to ensure that the rate of loading is appropriate for site

- specific geotechnical condition s. Rapid loading could lead to fly ash instability. EPRI is currently continuing this work with field tests on the effects of loading rates on fly ash stability to further improve understanding of fundamental geotechnical properties governing safe rates of closure.

We are also in the process of developing a Technical Guidance for Dewatering and Capping Coal Combustion Residual Ponds document. This guidance document is intended to provide power companies with comprehensive guidance and information related t o the engineering issues associated with dewatering and capping of CCR ponds. The report will include state

- of

- the

practice information on dewatering and capping of impounded materials, as well as design analyses for closure cap construction. Information o n feasibility

- level evaluations, hydrogeologic investigations, hydrologic design, construction and operation, and post

- closure care are addressed. The guidance is currently in draft form and will not be completed for several months.
However the full table of contents for the draft report is included with these comments as Attachment B, and we can provide additional information if requested.

The following is a summary of the principal steps in the closure process. As described, time158

frames can vary substant ially among sites for each step, driven by site

- specific considerations such as CCR characteristics, and site size, age, and complexity.

Site Investigation

Many ponds are decades old and do not have complete information regarding the in situ
characterist ics of the CCR or of the subsurface geology and hydrogeology. It is necessary to obtain this information to design the dewatering and capping system. This information is also required to provide contractors sufficient information to be able to safely move and shape the CCRs, adding required soil or other geologic materials to create a surface topography suitable to meet long term maintenance objectives of the capping system. These maintenance objectives include avoiding surface water ponding and minimizing erosion and degradation. Inadequate preparation can lead to equipment vibration

- induced liquefaction, veneer sliding of the surface crust, and slope instability of cut/excavated faces. EPRI is working with power companies and engineering consultants to bui ld a database of geotechnical technical information necessary to safely operate equipment on the surface of CCRs during closure.

The typical subsurface information that is required includes stratigraphy, grain size, Atterberg limits, undisturbed samples f or consolidation and strength testing, water levels in the CCRs and underlying aquifer, hydraulic conductivity, and in situ testing using cone penetrometer equipment and piezometers. Hydrogeologic information is used to determine the potential need
for an integrated program to address potential groundwater quality impacts as part of the closure.

Subsurface geotechnical investigations are often done in two, three and sometimes four phases; as each phase is completed further data needs are identified. The in vestigations are complicated if open water is still present on the pond, requiring either barge access for drilling and sampling or obtaining some subsurface information after the pond is drained and prior to construction to confirm design parameters. This situation is likely to be common for ponds closed before they are completely filled.

Site Closure Design

There are four different types of ponds: diked, incised, valley fills, and side hills. The closure design for a very small diked or incised pond may be completed in a few months. Conversely, a large valley fill or side hill pond closure design is significantly more complex. Hydraulic modeling is necessary to understand the run on and runoff characteristics during and after closure, and temporary treat ment processes need to be considered to meet NPDES permit requirements. Taking these factors into account, the design process could take from several months to more than a year for a large or complex site.

Permitting

A closure plan, including an estimate d timeframe to complete the closure, may require one or more permits or permit modifications, including a solid waste permit, an NPDES permit, and permitting from other state and federal agencies. Approval times can vary widely, depending on complexity of the closure and availability of the regulatory agency for review.159

Construction

Items that will affect the duration of a construction project (from initial bidding through completion) include: (i) the complexity of the pond draining and dewatering, (ii) t he size of the project, (iii) availability of soil materials, and (iv) construction, operation, and maintenance of haul roads. Dewatering and shaping of slopes are major construction activities that are unique to CCR ponds compared to typical solid waste l andfills. Time for construction may be relatively short for a small diked or incised facilities, but will take several years for larger valley fill and side hill ponds.

Dewatering

The dewatering process will vary considerably depending upon the type and size of the pond, and geotechnical properties of the CCR material. In all cases, free standing pond water must first be drained. While draining the free standing water may not necessarily take a long time, the stability of the CCR in the pond must be consi dered. If draining is conducted too quickly, slope instability of the CCR within the pond can occur, causing “mud waves” of CCR that could threaten the structural integrity of interior dikes or the perimeter containment system, or cause overtopping. Furthe r, if draining is conducted too quickly the side slopes of the earthen containment dikes can experience sloughing and possibly deeper seated slope stability failures. The rate of free water draining must be slow enough to avoid instability of internal CCR slopes
and dikes.

After standing water is removed, the fine

- grained CCR remains near saturation and very soft/weak throughout operation. In order to safely move equipment on the CCR surface to construct a capping system, the CCR strength must be improved. This is usually accomplished by dewatering of at least some of the interstitial water, and/or addition of strengthening or densifying agents. Dewatering interstitial water in these fine grained materials can be accomplished by several methods, including s umps, parallel trenching, and well points. The time for this strengthening process is dependent on several variables, such as CCR type and hydraulic conductivity. The hydraulic conductivity of fly ash, for example, typically spans a range of about
two orde rs of magnitude, from 5 x 10^

- 4 to 5 x 10^

- 6 cm/sec. The time to dewater the fly ash is proportional to the hydraulic conductivity. FGD solids comprised principally of thixotropic calcium sulfite may require more time to dewater and stabilize.

Reshaping S lopes

Essentially all of the ponds will require reshaping of the surface to achieve grades to shed runoff during the post closure period. To the extent possible, many closure designs will likely utilize the CCR that is already in the pond, moving it eithe r by mass excavation or hydraulic dredging. In many cases, additional soil may be required to shape the final grades. For large sites in particular this is a significant construction activity, and transporting and placing fill materials can be a limiting f actor. For example, one valley fill pond that is approximately 300 acres in plan and approximately 5,900 ft along the centerline of the original stream valley will require moving over 4,000,000 cu yd of grading fill (fly ash and soils) to raise the grade i n the upstream end to a160

maximum height of 30 ft.

Cap Placement

The final step is installation of the various components of the cap. This may include placement of geogrid, drainage layer, compacted clay, geosynthetic liners, soil, topsoil, and vegetation

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 11 Organization 1 : PPL Services Corporation [5E] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: PPL appreciates EPA’s responsiveness to comments explaining why the closure time frames in the 2010 CCR proposal were impracticable and that the time required to close an impoundment is not simply a function of the unit’s acreage. There are p otentially innumerable complications and circumstances that render it nearly impossible to predict with precision when the closure of a surface impoundment or landfill will be completed. Therefore, PPL continues to believe that it is impractical and unreal istic for EPA to subject the closure of CCR surface impoundments or landfills to any type of fixed regulatory deadline.

Given this, PPL believes the most appropriate regulatory option to ensure the safe and prompt completion for closing CCR surface impoun dment and landfills is to allow for closure time frames to be governed by a state

- approved closure process. In many states, regulators take an active role in reviewing, approving and overseeing all relevant aspects of closure. This is specifically the case for PPL operated facilities in Kentucky, Montana, and Pennsylvania as mentioned earlier. This entails, at a minimum, the preparation of a detailed closure plan that is reviewed and approved by the state. The plant operator is required to conduct its closu re activities in accordance with the closure plan and other approvals and remains subject to continuing state oversight throughout the completion of the closure process. Closure would not be complete until the state certifies that all required actions have been completed. The state

approved closure process would be included in the facilities’ operating record and any proposed modifications to the closure plan requested at the time of closure. Under these circumstances, where a state reviews, approves, overs ees, and certifies the closure process, there is no need to
resort to the one

- size

- fits

- all closure time frame and rebuttable presumption procedure suggested by EPA.

In some instances, a plant operator may elect or be obligated to “clean close” an impound ment. This process entails the dewatering and removal of all the CCRs from the impoundment. The CCRs will either be diverted to beneficial use or disposed of in a landfill. The logistics of dewatering and removing potentially the entire volume of CCRs, not to mention closing the site following removal, mean that this closure method can take a dozen or more years to complete. This is an environmentally beneficial closure method and any time frames should have sufficient flexibility to allow for full implemen tation of clean closure. PPL is considering such an option at161

one of its CCR disposal impoundment and would not want an artificially imposed closure timeframe to limit such a closure option.

In the NODA EPA included information on the proposed closure pla n for PPL’s Martins Creek Basin No. 4. EPA notes that the closure plan was expected to take 3 years to complete for this ~40 acre facility. It is important to first recognize that this closure plan was pre

- closure proposed time frame, not actual reflection s of the time it has taken to close this unit. The plan reflected the estimate from qualified and experienced personnel, but the actual time frame can vary due to unforeseen or changing conditions. Closure plans often acknowledge the existence of unknown
f actors or leave parts of the plan open for later determination. Specifically, the closure of Martins Creek Basin No. 4 did actually take over 5 years to complete.

As evidence of this point, attached to these comments is the text, Attachment 1

– Photos, an d Appendix F

– Regulatory Approvals from the final Construction Summary Report for the Martins Creek Steam Electric Station Ash Basin No. 4 Closure, which demonstrate that it can take longer to complete closure than is predicted in closure plans. At Martin s Creek, PPL had to obtain approval for a modified closure plan, three modified permits, and various local planning approvals because the associated boiler had been prematurely closed before the impoundment had reached its expected capacity. Several of the permits and approvals were subject to public
notice and comment. USWAG has included all the relevant Martins Creek Basin No. 4 closure documents with their comment package.

The impoundment ceased receiving wastewater in January 2008, and the closure work began shortly thereafter with dewatering the basin and preparing the revised closure plan and permit modification applications. Capping, final soil grading and seeding of the entire ash impoundment were not completed until Spring 2012. The vegetation had reached an acceptable level by end of 2012 so that the water runoff from the basin could be directed to the storm water outfall. By early 2013, all the remaining closure actions were completed, and by Spring 2013, closure documentation was provided to stat e regulators for their final approvals of the closure. Regulators issued these final approvals in July 2013. Notwithstanding the noticed closure plan’s prediction that the closure of this roughly 40

- acre impoundment would take only three years, it

was over five years before the closure was certified.

Indeed, the Martins Creek closure could have taken much longer. The state issued PPL interim approvals that allowed certain construction activities, including dewatering and grading, to commence prior to final approval. It took two years for all approvals to be granted. If the PPL had not been granted interim approval, the time for closure would have been extended out two years further. Furthermore, PPL implemented closure activities under interim approval at i ts own risk. PPL could have been required to redo parts or all of that work if the final approval required a different approach.

As explained above, many of the uncertainties associated with closing a surface impoundment also apply to completing the closu re of a landfill. As is the case with surface impoundments, there are many are factors beyond the control of a plant operator that could delay final closure, such as material shortages, weather events, state permitting delays, the design of the unit, the

n eed for an updated topographical survey, the bid process with contractors, and the development162

of a final closure report with detailed QA/QC data. Therefore, it is absolutely essential that if landfill closure should not be subject to a suggested regulator y time frame for completing closure, but should be allow to be covered by a state

- approved closure process, under which the owner or operator should be able work with the state agency to manage the closure process and
schedule.

PPL generally supports the regulatory language for allowing reasonable closure timeframes for surface impoundments and landfills that USWAG proposed in its comments to the NODA. PPL specifically wants the EPA to note in the regulations that closure plans and schedules developed
with the state agencies will dictate the timeframes rather than any timeframes provided by the federal regulations

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 9 Organization 1 : PPL Se rvices Corporation [5E] Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: PPL appreciates that EPA has acknowledged that the time frames for initiating and completing closure in the 2010 CCR proposal “did not adequately account for the complexities inherent in electric generating facility operations, and the different characteristics of CCR surface impoundments.” 78 Fed. Reg. at 46944. There are simply too many variables

— many of which
are outside utilities’ co ntrol

— to promulgate one

- size

- fits

- all timelines for initiating or completing closure of CCR surface impoundments and landfills. To ensure that closure takes place in a manner that is both reasonable and protective of the environment, PPL continues to
belie ve that any closure time frames in the final CCR rule should be consistent with a closure process approved by a state or a closure plan developed and certified by a registered professional engineer. This approach represents the best option for taking into account the innumerable variables that can affect the actual time it takes to close a CCR management unit.

EPA expresses concern that “due to the self

- implementing nature of the (proposed) regulations, it is possible that the owner or operator could unila terally decide to extend closure activities longer than necessary or that would be protective.” 78 Fed. Reg at 46945. PPL believes, however, that these concerns are unfounded and do not justify the imposition of arbitrary or inflexible closure
time frames. First, under existing state regulations or permits, closure plans generally must be approved by the state and are subject to regulatory oversight. State oversight acts as an effective check on utilities’ ability to unreasonably delay closure activities. S econd, and more fundamentally, there is little reason for plant operators to purposefully delay site

- specific closure time frames because there is little incentive for them to needlessly draw out closure activities. Although EPA states that this problem is theoretically possible, the Agency has provided no record evidence to support the position that such unnecessary delays in fact occur. PPL can assure the EPA that at our facilities in Kentucky, Montana, and Pennsylvania our state environmental agencies wi ll be directly involved in the closure approval and oversight process as they have been for many years.163

While PPL appreciates EPA’s evaluation of the “tiered approach” with a rebuttable presumption for establishing closure time frames for CCR surface impo undment and landfills, we believe that this approach, with the suggested modifications discussed below, should only serve as a fall back
in the absence of a state

- approved and administered closure process that sets forth the controls, timing and procedures for the closure of a particular unit. When a state is directly overseeing and administering the closure process for a CCR surface impoundment or landfill, there is no need for any type of regulatory presumption setting forth time frames for closure as the re will be a regulatory body with direct oversight and enforcement authority for ensuring that closure proceeds as promptly and safely as possible

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 20 12

- 0028

- 0106

- 2 Organization 1 : Cleco Corporation Commenter Type: Electric Utility Company
Classification: NODA2 Substantive

Comment Excerpt Text: The Louisiana Environmental Quality regulations require that impoundments holding waste operate under a solid waste permit which includes an approved closure plan. Pasted below is an itemized schedule from an existing permit for in

- place closure of 3 CCR impoundments totaling

66 acres:

OPERATION: Dewater Ponds
DAYS: 35
ACCUMULATED DAYS: 35

OPERATION: Solidify Re maining Solids
DAYS: 49
ACCUMULATED DAYS: 84

OPERATION: Clean & Salvage Equipment
DAYS: 14
ACCUMULATED DAYS: 98

OPERATION: Backfill Ponds
DAYS: 112
ACCUMULATED DAYS: 210

OPERATION: Install Final Cover
DAYS: 70
ACCUMULATED DAYS: 280

OPERATION: LDEQ Insp ection
DAYS: 28164

ACCUMULATED DAYS: 308

OPERATION: Install Ground Cover
DAYS: 21
ACCUMULATED DAYS: 329

OPERATION: Cleanup & Demobilization
DAYS: 7
ACCUMULATED DAYS: 336

OPERATION: Final Closure Document
DAYS: 21
ACCUMULATED DAYS: 357

Pasted below is an i temized schedule from an existing permit for clean closure of 2 CCR impoundments totaling 5.5 acres:

OPERATION: Dewater Ponds
DAYS: 21
ACCUMULATED DAYS: 21

OPERATION: Excavate Remaining Solids
DAYS: 35
ACCUMULATED DAYS: 49

OPERATION: Clean & Salvage Equ ipment
DAYS: 7
ACCUMULATED DAYS: 56

OPERATION: Confirmatory Sampling
DAYS: 7
ACCUMULATED DAYS: 63

OPERATION: LDEQ Review & Approval
DAYS: 28
ACCUMULATED DAYS: 91

OPERATION: Backfill Ponds
DAYS: 35
ACCUMULATED DAYS: 126

OPERATION: Install Final Cover
DA YS: 90
ACCUMULATED DAYS: 216

OPERATION: LDEQ Inspection165

DAYS: 28
ACCUMULATED DAYS: 244

OPERATION: Install Ground Cover
DAYS: 21
ACCUMULATED DAYS: 265

OPERATION: Cleanup & Demobilization
DAYS: 7
ACCUMULATED DAYS: 272

Both of the itemized schedules are d escribed in the permits as anticipated. The schedules may be
revised due to weather and other unforeseen factors.

Considering the schedules presented above, allowing only 180 days to complete closure activity seems inadequate. Cleco believes that a 365 da y period should be allowed for closing of an impoundment starting at commencement of work. Also some language should be placed in the rule allowing a longer time period if approved by the regulatory authority

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Section 4.4.8.2.3

- Other comments on the time frames

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0062

- 1 Organization 1 : GSE Environmental Commenter Type: Other Company
Classification: NODA2 Substantive
Other Sections: 3.4.1.1.7

Comment Excerpt Text: GSE would like to ensure that EPA is aware of all pertinent information related to the effective use of geosynthetic materials for waste containment. The Geosynthetic Institute (Drs. Robert and George Koerner, Folsom, Pa.) website c ontains a partial index of the U.S. EPA documents that are related to the use of geosynthetics. The complete list is linked via the webpage is here: http://www.geosynthetic

- institute.org/epa.html . Clearly, geosynthetic materials have been well
examined an d proven to be effective.

In the August 2, 2013 request, EPA solicits comment on the feasibility of complying with the Agency’s proposed time frames for closing surface impoundments in the subtitle D option. GSE offers the following comments and documenta tion on this topic:

Historically, EPA has had great success in its mission to protect human health and the environment by the application of the closure (also referred to as capping) components of RCRA (Resource Conservation and Recovery Act) subtitle “D” and “C’ requirements to sites where
environmental containment and or remediation is needed. GSE would recommend that the functional, effective and historically proven techniques for capping and closures that have been166

used in the solid waste containment i ndustry, Superfund (CERLA) sites and liquid storage and groundwater protection be applied to coal ash storage. Specifically that a capping and closure system be designed by an appropriately licensed and qualified civil engineer, permitted by the appropriat e state agency and include a geosynthetic barrier system with less than or equal permeability to that of the base liner requirements or a minimum of 10

- 7 centimeters per second at the maximum anticipated hydrostatic pressure, whichever is less permeable. T his methodology has been successfully applied to literally hundreds of sites over the last several decades. Some specific examples from EPA published literature are listed and linked here: Ripon City Landfill, Fond Du Lac County, Wis. (http://www.epa.gov/s uperfund/sites/rods/fulltext/r0596296.pdf), Tri

County/Elgin Landfills, Elgin, Il. (http://www.epa.gov/superfund/sites/fiveyear/f2009050003330.pdf) and Enterprise Avenue Landfill, Philadelphia PA (http://www.epa.gov/superfund/sites/fiveyear/f02

- 03004.pdf). Other relevant publications include “Case History of a 16

- Year Old Exposed HDPE Geomembrane Cover” authored by Case, Koerner and Koerner , presented at the Global Waste Management Symposium held in September 2012, Phoenix Ariz. (http://wastesymposium.com/ gws2012/Public/Content.aspx?ID=1036994&sortMenu=103002 ), “Cover systems for landfills and brownfields” authored by Heerten and Koerner (http://www.globalsynthetics.com.au/files/technical_downloads/Tech_Land_Contamination.pdf ) and a white paper published by the Geosynthetic Institute titled “On The Questionable Strategy
of Soil

- Only Landfill Covers” (http://www.geosynthetic

- institute.org/papers/paper2.pdf ).

This technology, engineering expertise, construction and installation resources and materials are readily available and are currently broadly used. GSE strongly recommends that the EPA apply this technology to the existing issue of groundwater contamination from older and unlined coal ash storage facilities.

In the August 2, 2013 request, EPA also sol icits comment on how the technical requirements relate to units constructed on top of closed surface impoundments or landfills (i.e., “overfills”). GSE offers the following comments and documentation on this topic:

Similarly to the capping and closure iss ue, the technology for construction of containment sites over existing and operational storage facilities is not new and the materials and methodologies have been in use for decades and have proven to bee very effective, reliable and well understood.
In th e solid waste industry, this methodology also is termed vertical expansion or “piggybacking”; this addresses the situation that EPA is requesting comment on, that is the construction of a (presumably lined) facility over an existing coal ash storage site. Again, several hundred sites of this type have been constructed, some, as will be referenced, are very large, complex storage sites. The geosynthetic materials have long existed to properly design, support and construct the stable and long lasting geotechn ical structures that hold these materials. In fact, coal ash in many ways is a simpler and less variable problem that engaging in this type of construction with solid waste materials; the relative consistency of coal ash and its more homogeneous and stable properties (relative to solid waste with variable liquid contents) will allow for more accurate predictions and improved reliability in the construction of coal ash storage sites.

Many examples from EPA published literature are available. A specific EPA published study167

addressing both static and seismically active areas is “Seismic Design Guidance for Municipal Solid Waste Landfill Facilities” authored by Richardson, Kavazanjian and Matasovic: (Report
No. EPA 600/R

- 95/051) linked here: http://smithgardner inc.com/docs/1995

- Seismic_Design_Guidance_for_Municipal_Solid_Waste_Landfill_Facilities.pdf . In fact, as early as 1993, geosynthetic reinforced slopes contacting and containing coal ash were being constructed at the E.B. Brown Power Generation Facility in Mercer County, Ky. The successful performance of this methodology was documented in the paper by D. W. Armour Jr. and C.M. Avery, “Design, Construction and Performance of a Test Embankment on Hydraulically Placed Ash” (Proceedings, Geosynthetics ‘93, Vanc ouver, British Columbia, Canada, March 1993, pg.
1243

– 1258) links here http://www.gbv.de/dms/tib

- ub

- hannover/183688635.pdf and here http://infohouse.p2ric.org/ref/29/28906.pdf. Many very large scale solid waste expansions and reinforcements of existing s ites have been constructed and reported on, two examples are published by Geosynthetics magazine: “ Massive soil reinforcement at Cherry Island extends
landfill’s use for decades” linked here: http://geosyntheticsmagazine.com/articles/1012_f1_soil_reinforc ement.html and “Bluffside stabilization in Kansas City linked here: http://geosyntheticsmagazine.com/articles/0812_f4_wall_apartment.html . The paper: A Project of Many Firsts: The South Hadley Landfill Cell 2D Vertical Expansion (link here: http://keyston eswana.org/DocumentCenter/View/88 ) describes an existing site that could only be expanded with the use of geosynthetics. Most recently some articles have turned to the specific examination of coal ash sites: “Use of Bottom Ash in the Reinforced Zone of a Mechanically Stabilized Earth Wall for the Vertical Expansion of a Sluiced CCR Pond at the Trimble County Generating Station” by Schmitt and Cole (linked here: http://www.flyash.info/2013/125

- Schmitt

- 2013.pdf ) speaks specifically and directly to the
EPA’s request and affirms the value and effectiveness of geosynthetic materials in providing a solution to this problem. Further, an additional publication within Geosynthetics magazine, “Sustainability Contribution By MSE Berms At Landfills” by Brown and Liew (linked here: http://geosyntheticsmagazine.com/articles/0812_f2_berms_landfills.html ) discusses the benefits of MSE berms relative to sustainability, and in terms of carbon footprint, of an MSE berm vs. a traditionally constructed, unreinforced one. Final ly, it is noteworthy that the state of North Carolina has established a regulation addressing the construction of additional storage on existing sites. This regulation (linked here: http://law.justia.com/codes/north

carolina/2012/chapter

- 130a/article

- 9/sec tion

- 130a

- 295.4 ) in addition to the considerations for structural stability, prescribes a special liner for this application. This requires that a “leak detection layer” be included in the bottom liner design for such vertical expansions. An action leakag e rate is established in the leak detection layer providing early warning of possible infusion of liquid into the CCR mass

.

EPA Response : To the extent these comments are not considered “late comments” in accordance with statements in the NODA, EPA responds to th ese comment s in Unit M.3 of the preamble and elsewhere in the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0071

- 1 Organization 1 : Great River Energy (GRE) [5J] Commenter Type: Electric Utility Company168

Classification: NODA2 Substantive

Comment Excerpt Text: The Agency needs to carefully align the CCR rule with the proposed and final ELG rulemaking efforts. Since both are closely related these efforts need to be carefully coordinated so that any mandated pond or disposal unit closure doesn’t eliminate potential treatment options for various low volume and nonchemical cleaning wastes. GRE uses ponds, mainly bottom ash ponds to treat these other wastewater streams as they are typically similar in concentration and nature. These units may also be needed to treat newly regulated waste streams such as leachate or

stormwater

.
EPA Response : EPA responds to this comment in Unit VI. M .4 of the preamble.

Section 4.4.8.3

- EPA solicits comment on appropriateness of “clean

- closure” provisions
unde r a RCRA Subtitle D rule, and info on number of facilities that may take advantage of
a “clean

- closure” option (35208)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 20 Organization 1 : We Energies Commenter Type: Electric Utility Company

Comment Excerpt Tex t: COMMENT: We support the inclusion of a “clean closure” option for CCR landfills under a Subtitle D rule to provide a complete range of remedial options where appropriate.

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 153 Organization 1 : Kentucky Department for Environmental Protection [4AA] Commenter Type: State Government

Comment Excerpt Text: The RBCA process is one method that could be used, however there are other alterna tives for evaluating clean closure and alternative state

- level procedures should be allowed for closure
under a risk

- based scenario. Sites in Kentucky use KRS 224.01

- 400 and 224.01

- 510 through 530 for voluntary cleanup under the state superfund and hazardo us waste programs and similar procedures may be appropriate for evaluating whether a site could be clean closed without future management (see: http://www.lrc.ky.gov/KRS/224

- 01/CHAPTER.HTM). The voluntary cleanup program in KRS 224 uses both using risk

- bas ed and ambient background levels for evaluating No Further Action or management of risk. It is not expected that many facilities would take advantage of a clean closure scenario. Closure under Subtitle D regulations for corrective action,
similar to 401 KA R 45:160, Section 5 would be preferred and be consistent with closure under the Kentucky solid waste program. See http://www.lrc.ky.gov/kar/401/045/160.htm for more
information.169

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 25 Organization 1 : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company Commenter Type: Electric Utility Company [4C]

Comment Excerpt Text:
b. EPA Should Allow In

- Place Closures and Siting of New CCB Disposal Facilities Atop Closed Surface Impoundments.

Proposed section 257.100(b) allows for closure of a CCB landfill or surface impoundmen t with CCBs in place or closure through CCB removal and decontamination of all areas affected by releases from the landfill or surface impoundment. [Footnote 75: See id. at 35208.] It is Southern Company’s position that removal and decontamination is not a viable option. Typical ash ponds within the service territory of Southern Company subsidiaries comprise hundreds of acres and have been in service for decades. To remove and redispose of that amount of material is cost

prohibitive and unnecessary.

On th e other hand, closure with CCBs in place is a viable option at most of Southern Company’s CCB landfills. Following the drainage of free liquids and compaction of materials to the extent necessary to prevent subsidence, an appropriately designed cap could b e installed to minimize/prevent infiltration as well as to manage stormwater run

- on and run

- off. Moreover, groundwater wells around the facility would be used to monitor potential leaching of contaminants from the site. Ultimately, the clean closure of exi sting facilities through capping could allow for continued use of the areas, including the potential construction of new landfill
facilities.

The proposed regulations are not clear as to whether EPA intends to allow the siting of a new
CCB landfill on to p of a closed and capped pond. At several of Southern Company’s facilities, the availability of land either onsite or nearby greatly limits the options for new or expanded CCB management facilities. A closed ash impoundment that spans several hundred acres is often the best and most economical option for new CCB management facilities. Further, to allow the siting of a new CCB unit on a previously impacted site minimizes impacts by encouraging development on what is essentially a brownfield site.

There is some precedent among state programs to allow for siting of CCB disposal facilities within areas previously used for that purpose, subject to appropriate conditions for monitoring and other safeguards. [Footnote 76: See, e.g., N.C. GEN. STAT. 130A

- 295.4.] E PA should respect the precedent established through existing practices and examples and not preclude this practice

.

EPA Response : EPA responds to this comment in Unit VI. M.2 of the preamble. EPA responds to comments regarding “overfills” and related issu es in Comment Response

Document Volume 11

.170

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 63
Commenter 1 : Anonymous [4YY] Commenter Type: Anonymous

Comment Excerpt Text: Closure options would be site

- specific and clean

- up specific for each facility. Achieving “clean” closure can be subjective or quantitative depending on the facility and specific circumstances. Give facilities an incentive for “clean” closure and allow the facility to demonstrate cleanliness of the closure. Information provided by the facility should be followed by a third

- party review (see Comment #1). A site visit would be highly recommended.

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06723

- 30 Organization 1 : West Virginia Department of Environmental Protection (WVDEP) [4DD] Commenter Type: State Government
Other Sections: 4.7

Comment Excerpt Text: Section 257.100(b) specifies that decontamination is considered to be complete when constituent
concentrations th roughout the CCR landfill or surface impoundment and any areas affected by releases from the CCR landfill or surface impoundment do not exceed numeric cleanup levels for those constituents found in the CCRs established by the state in which the CCR landfil l or surface impoundment is located. This section should be revised to address only areas affected by waste disposal because the waste materials have been removed.

Cleanup levels apparently refer to CCR constituent levels in soil. Rather than requiring s oil removal, cleanup should instead be based upon groundwater concentrations exceeding primary
MCLs.

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 40 Organization 1 : Arizona Department of Environmental Quality (ADEQ) [4V] Commenter Type: State Government
Other Sections: 4.4.8.8 4.7

Comment Excerpt Text: Pg. 35252 Section 257.100 Closure criteria: Paragraph (b) of this section appears to indicate that a clean closure is possi ble by removing CCRs and structures and decontamination of all areas affected by releases. Arizona requests that a provision be added to the closure or post

- closure care requirements to exclude facilities that can achieve clean closure in accordance with s tate soil and groundwater standards from post

- closure care requirements.171

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Section 4.4.8.4

- EPA solicits comment on appropriateness of degree of flexibility to account
for site

- specific conditions provided by proposed alternative final cover design certified by independent PE, given lack of guaranteed state oversight (35209)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 38 Organization 1 : Kansas Department of Health and Envi ronment [4JJ] Commenter Type: State Government
Other Sections: 4.4.8.5 4.7

Comment Excerpt Text: Proposed Rule (d) For closure with CCRs in place, a final cover system must be installed at all CCR landfills and surface impoundments that is designed to minimize infiltration and erosion. The final cover system must be designed and constructed to: (1) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than lx10

- 5 c m/sec, whichever is less,
and (2) Minimize infiltration through the closed CCR landfill or surface impoundment by the use of an infiltration layer that contains a minimum IS

- inches of earthen material, and (3) Minimize erosion of the final cover by the use of an erosion layer that contains a
minimum 6

- inches of earthen material that is capable of sustaining native plant growth,
and (4) Minimize the disruption of the final cover through a design that accommodates settling
and subsidence. (e) The owner or ope rator of the CCR landfill or surface impoundment may select an alternative final cover design, provided the alternative cover design is certified by an independent registered professional engineer and notification is provided to the state and the EPA Regio nal Administrator that the alternative cover design has been placed in the operating record and on the owner's or operator's publicly accessible internet site. The alternative final cover design must include: (1) An infiltration layer that achieves an equi valent reduction in infiltration as the infiltration layer specified in paragraphs (d)(I) and (d)(2) of this section, and (2) An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in paragraph (d)(3 ) of this section.

For the geological conditions encountered in Kansas this proposed language could result in final covers needing to be composite caps incorporating a geomembrane. In several solid waste landfills in Kansas, post

- closure maintenance of su ch cover systems has been challenging. Such cover systems are not sustainable indefinitely into the future. On the other hand, appropriately designed alternative final covers such as capillary barrier covers and evapotranspiration covers are being successf

ully used in Kansas and such covers are designed to be protective indefinitely into the future with minimal maintenance. EPA technical experts and trainers have been supportive of such covers being used for Subtitle D landfill and similar technical basis w ould172

apply to CCR landfills. Kansas requests that paragraphs (e)( 1) and (e )(2) of section (e) be deleted and section (e) be modified to read as follows:

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative final cover design, provided the alternative cover design is certified by an independent registered professional engineer and notification is provided to the state and the EPA Regional Administrator that the alternative cover design has been placed in the opera ting record and on the owner's or operator's publicly accessible internet site.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05798

- 1
Commenter 1 : Anonymous Environmental Consultant [4ZZ] Commenter Type: Private Citizen
Other Sections: 4.4.5.1.1 3.4.1.1.2

Comment Excerpt Text: It doesn't make sense for USEPA to advocate presc r iptive designs for applications where multiple technologies are available and perform similarly for two reasons;

First, this stifles the development of newer, more effective and potentially less costly technology alternatives because it limits the opportunity for their eventual application. This seems to be
counter to what EPA's mandate shou ld be.

Second, it places all of the risk, should the technology that EPA supports ultimately prove inadequate, on EPA.

The USEPA should be setting performance based standards and spending their resources evaluating the proposed approaches but letting the marketplace de liver solutions that are first effective, then cost effective for those who have to pay the bill.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 154 Organization 1 : Kentucky Department for Environmental Protection [4AA] Commenter Type: State Government

Comment Excerpt Text: This degree of flexibility should only be allowed if a set of state regulations are in place governing permit applications, prior public notice, and prior review by state professionals of variances and alternate designs.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.173

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 26 Organization 1 : Southern Company on behalf of itself and its fo ur subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company , and Mississippi Power Company Commenter Type: Electric Utility Company [4C]

Comment Excerpt Text: c. Closure Requirements Should Allow Consideration of Site

- Specific Factors.

Allowance for alternative cover methods is appropriate. The Subtitle D proposal requires that CCB landfills and surface impoundments have a final cover system, which meets vario us requirements. [Footnote 77: See 75 Fed. Reg. at 35208.] Alternatively, though, “the rule allows the owner or operator of the CC[B] landfill or surface impoundment to select an alternative final cover design,” so long as certain requirements are satisfie d. [Footnote 78: Id. at 35209.] EPA states that it has “included this alternative cover requirement to increase the flexibility for the facility to account for site

- specific conditions” and seeks comment as to whether such flexibility is appropriate. [Foot note 79: Id]

Assuming any federal standard were to take effect, a provision to allow alternative cover methods is appropriate. [Footnote 80: Id] CCB regulation should focus on appropriate construction, maintenance, and management of CCB impoundments rath er than on the classification of CCBs. At a minimum, additional CCB closure regulations should be implemented only on a unit

- specific, risk

- based basis that allows effective disposal units to operate for the remainder of their useful lives. This could be a chieved through a modified Subtitle D Prime approach.

There are a number of alternative techniques for closure that would be protective of human health and the environment. For instance, the use of geosynthetic clay liners (“GCLs”) in lieu of eighteen in ches of 1x10

- 5 cm/sec material is commonly accepted for MSWLFs. This is particularly important in areas where less permeable materials are not readily available naturally. The GCLs have documented permeability characteristics on the order of 1x10

- 9 cm/sec, and other alternatives may be available as well. Another example, cited by EPA, is the use of evapotranspiration covers. [Footnote 81: See Id] EPA itself has sponsored extensive research and demonstrations of alternate closure methods, over many years, th rough its Alternative Cover Assessment Program (“ACAP”). In a 2003 fact sheet, EPA stated:

Alternative final cover systems, such as evapotranspiration (ET) cover systems, are increasingly being considered for use at waste disposal sites, including munici pal solid waste (MSW) and hazardous waste landfills when equivalent performance to conventional final cover systems can be demonstrated. [Footnote 82: U.S. ENVIRONMENTAL PROTECTION AGENCY, EVAPOTRANSPIRATION LANDFILL COVER SYSTEMS FACT SHEET (2003) (emphas is added).]

Additionally, alternative designs could also facilitate and enhance reuse and “repurposing” of closed brownfield sites for other beneficial uses, thus conserving precious land resources.174

Accordingly, EPA should not preclude a more flexible pr ocess that would allow site

- appropriate alternative designs for effective closure of CCB impoundments and landfills

.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 107 Organization 1 : Earthjus tice et. al. [4D] Commenter Type: Advocacy Group

Comment Excerpt Text: In general, the subtitle D requirements for covers appear to be performance

- based and are not sufficiently specific. The layers of a cover system should be specified in much the same manner that the layers of a liner are specified. Further, the cover system should be a composite system.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 65 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) [4BB] Commenter Type: State Government

Comment Excerpt Text: The discussion of alternative final cover designs on p. 35209, states that justification is required but doe not acknowledge plan review by State agencies. The rule leaves decisions to a registered P.E. to decide what is appropriate. For reasons noted elsewhere, this is not sufficient without review and input by environmental agency staff. Note also that in the RCRA Sub D part 258 MSW landfill rules, such alternative covers are subject to a Research, Demonstration and Development (RD&D) permitting action by authorized States, for the purpose of demonstrating whether such covers actually work. The RD&D permits limit use of alternative covers to 3 year time periods and a 12 year total, with the requirement that data and record be produced to document whether the alternative cover meets stated goals. It is premature to assume the utility
of such fina l cover designs for the RCRA Sub D part 257 rule for CCR landfills when States and EPA have yet to make such decisions for RCRA Sub D part 258 MSW landfills. Our suggestion is that alternative final covers, such as evapotranspiration covers or water balanc e covers, only be allowed in the context of an existing RD&D permitting action for the limited time periods and the reporting requirements required in 40 CFR 258 for MSW landfills, in States that have received RD&D permit authority under 40 CFR 258.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06424

- 13 Organization 1 : Garrett & Moore, Inc. [4G]
Commenter 1 : Bernie Garrett Commenter Type: Other Company
Other Sections: 4.7 4.6.1.2 4.6.1.3 4.6.1.4175

Comment Excerpt Text: Closure Criteria (257.100)

Add a paragraph allowing for the consideration of alternative final cover systems that provide equivalent protection of human health and the environment.

Regarding the deadline for completion of closure activities, EPA should incorporate a tiered approach based on the size (in acres) of the existing CCR landfill or existing CCR surface impoundment. In the case of existing CCR surface impoundments, the completion time for
closure activities should not begin until after operations have ceased and the site has had adequate time to dewater.

For example:

Table 1: Two Columns: Closure Area (acres), Completion Time (Months)

Closure Area:<20

Completion Time:12

Closure Area: 20 to 5 0

Completion Time: 24

Closure Area: 50 to 75

Completion Time: 36

Closure Time:>75

Completion Time Site Specific

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08840

- 14 Organization 1 : Electric Power Generation Association [4SS] Commenter Type: Trade Association
Other Sections: 4.4.8.2

Comment Excerpt Text: A. Timeframe for Closure of Surface Impoundments and Landfills.

Under both the Subtitle D and Subtitle D Prime options, there are certain proposed design and siting standards that existing facilities must meet, or they will have to close. Even though in the Subtitle D Prime option, where existing surface impoundments c ould continue to operate for their remaining useful life, EPGA believes there will be some existing landfills and surface176

impoundments that cannot meet these newly proposed requirements and will be forced to close. The proposed time table for closure of th ese facilities is not realistic, and should be revised accordingly.

In the proposed 40 CFR Section 257.100 Closure Criteria under subsection 0) and (k), the owner or operator must begin closure activities no later than 30 days after receiving the last was te shipment and complete closure activities in accordance with their closure plan 180 days following the initiation of closure activities. Thus, EPA expects that closure activities for landfills and surface impoundments will take no more than 210 days to c omplete. Closure within
this time allotment would be unachievable in most cases. EPA has based this closure criteria on its experience with the operation of municipal solid waste landfills, and thus has borrowed these closure time frames directly from the landfill requirements in 40 C.F.R. Part 258.75 Fed. Reg. at 35209. Municipal solid waste landfills typically operate differently from CCR landfills, in that they operate small open cells, closing each cell as they proceed to fill the capacity of the landfi ll. CCR landfills also usually operate using cell construction, but those cells are often larger, with more open area that would need to be closed at the end of operation. Surface impoundments are even more limited in that the whole impoundment operates un til closure. Thus the entire surface area of the impoundment would still be under water until closure begins. In some CCR surface impoundments, this could mean that hundreds of acres would need to be closed in just 210 days after placement of the last CCR. This would be impossible. In fact some large impoundments could take several years to be dewatered to the point where a cover could be installed. Then, depending where the impoundment is located, and the availability of cover materials, it could take long er than the 210 days to deliver and place the required cap system.

EPGA believes that a more appropriate approach for closure would be to require closure of CCR landfills and surface impoundments consistent with a closure plan that has either been approve d by a state or developed and certified by a registered professional engineer or hydrologist. The closure plan would include a reasonable schedule for completion, and would account for the unique closure requirements of CCR disposal landfills and impoundme nts

.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 41 Organization 1 : Arizona Department of Environmental Quality (ADEQ) [4V] Commenter Type: State Government
Other Sections: 4.2.2 4.7 7.1

Comment Excerpt Text: Pg. 35252, Section 257.100 Closure criteria: Arizona requests that alternative final cover designs be approved by the Director of an approved state. Arizona’s Aquifer Protection Permit Program
allows for the final cove r design to be developed using the a Best Available Demonstrated Control Technology criteria and process and the design must be approved in the facility’s permit. Arizona requests that paragraphs (e)(1) and (e)(2) of section (e) be deleted and section (e) be modified as follows (modification in italics):

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative177

final cover design, provided the alternative cover design is approved by the Director of an approved state and certified by an independent registered professional engineer.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Section 4.4.8.5

- EPA requests examples documenting need for flexibility in developing cover requirements as well a s data/info that demonstrate alternative cover designs would be protective (35209)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 38 Organization 1 : Kansas Department of Health and Environment [4JJ] Commenter Type: State Government
Other Sections: 4.4.8.4 4.7

Comment Excerpt Text: Proposed Rule (d) For closure with CCRs in place, a final cover system must be installed at all CCR landfills and surface impoundments that is designed to minimize infiltration and erosion. The final cover system must be designed and constructed to: (1) Have a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than lx10

- 5 cm/sec, whichever is less,
and (2) Minimize infiltration through t he closed CCR landfill or surface impoundment by the use of an infiltration layer that contains a minimum IS

- inches of earthen material, and (3) Minimize erosion of the final cover by the use of an erosion layer that contains a
minimum 6

- inches of earthen material that is capable of sustaining native plant growth,
and (4) Minimize the disruption of the final cover through a design that accommodates settling
and subsidence. (e) The owner or operator of the CCR landfill or surface impoundment may select an
al ternative final cover design, provided the alternative cover design is certified by an independent registered professional engineer and notification is provided to the state and the EPA Regional Administrator that the alternative cover design has been plac ed in the operating record and on the owner's or operator's publicly accessible internet site. The alternative final cover design must include: (1) An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specif

ied in paragraphs (d)(I) and (d)(2) of this section, and (2) An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in paragraph (d)(3) of this section.

For the geological conditions encountered in Kansas this proposed language could result in final covers needing to be composite caps incorporating a geomembrane. In several solid waste landfills in Kansas, post

- closure maintenance of such cover systems has been challenging. Such
cover systems are not sustainable indefinitely into the future. On the other hand, appropriately designed alternative final covers such as capillary barrier covers and evapotranspiration covers are being successfully used in Kansas and such covers are designed to be protective indefinitely178

into the future with minimal maintenance. EPA technical experts and trainers have been supportive of such covers being used for Subtitle D landfill and similar technical basis would apply to CCR landfills. Kansas requests that paragraphs (e)( 1) and (e )(2) of section (e) be deleted and section (e) be modified to read as follows:

(e) The owner or operator of the CCR landfill or surface impoundment may select an alternative final cover design, provided the alternative cover design is certified by an independent registered professional engineer and notification is provided to the state and the EPA Regional Administrator that the alternative cover design has been placed in the operating record and on the owner's or operator's publicly accessible internet site.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03444

- 7 Organization 1 : Kansas Department of Health and Environment [4JJ] Commenter Type: State Government
Other Sections: 4.4.5.1.1 7.4.1 Comment Excerpt Text: While a Subtitle D regulatory approach is preferred by the State of Kansas, the proposed regulations under this approach also should be amended. The proposed regulations do not provide states with flexibility to consi der alternative liners, leachate management methods, or final covers considering variable local conditions with respect to soil types, depth to groundwater, distance from surface water, and annual precipitation. The prescriptive one

- size

fits

- all conservat ive approach is unnecessary in areas where local conditions provide an adequate and preferred degree of natural protection.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 21 Organization 1 : We Energies [4WW] Commenter Type: Electric Utility Company

Comment Excerpt Text:
COMMENT: It is critical to allow for alternative waste containment and leachate collection system designs to properly contain existing landfills and surface im poundments but to also allow for cost effective closure of these existing facilities. At the time the Subtitle D requirements were promulgated on the Municipal Solid Waste Landfill industry, one of the most effective methods of protecting the environment a nd allowing these facilities to close in an environmentally responsible manner was to allow alternative containment systems that could meet the necessary performance criteria of the prescribed system.

EPA Response : EPA responds (for final covers) to this comment in Unit VI. M

. 3 of the preamble.179

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 155 Organization 1 : Kentucky Department for Environmental Protection Commenter Type: State Government

Comment Excerpt Text: The evapo

- transpiration cover would have to meet the Environmental Performance Standards of 401 KAR 30:031, be certified by a Professional Engineer licensed in Kentucky, undergo permit application review, public notice, and found by the Commonwealth to protect the groundwater. See 401 KAR 45:110, Se ction 1 at http://www.lrc.ky.gov/kar/401/045/110.htm. With certain types of ash that absorb water and set up like weak concrete (up to 1000 psi), our engineers could see this as a possibility depending on the site and the ash.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 31 Organization 1 : Duke Energy [4MM] Commenter Type: Electric Utility Company

Comment Excerpt Text: Duke Energy encourages EPA to include provisions in the closure requirements that allow for Brownfield development, including new CCR disposal units that are compliant with the proposed Subtitle D rules. In the preamble to the Proposed Rule, EPA discusses its belief that disposal patterns will not change under the various regulatory options. That belief is mistaken. Many of Duke Energy’s generating stations are land

- locked and have minimal amounts of undeveloped properties available for any type of expansion. For stations such as these, the Proposed Rule would r equire utilities to permit and construct new disposal units off

- site. Thus, disposal patterns for these stations would be greatly affected.

The electric utilities have demonstrated that the use of fly ash and bottom ash as sub

- base in
construction of new CCR disposal units is a beneficial use application of CCR. In addition, Duke Energy has constructed air pollution control equipment, haul roads, and other pertinent plant buildings and facilities on top of previously closed surface impoundments with no neg ative impacts.

Along with these permanent structures, Duke Energy has also designed landfills to be constructed on top of closed surface impoundments. The first landfill Duke Energy permitted and constructed on top of a dewatered surface impoundment was i n Indiana. Its design was permitted through the Indiana Department of Environmental Management with instrumentation (i.e. piezometers, settlement plates, and inclinometers) to monitor and measure stability. The data
collected from that instrumentation has confirmed that the practice is safe when appropriately designed. Duke Energy has also designed and permitted landfills on top of surface impoundments, with liner systems that function both as a final cap for closure of the impoundment and the liner system for the landfill. Duke Energy conducts detailed stability analyses that are included in the permit application to demonstrate the safety of the design. This180

design has been also permitted by the Department of Environmental and Natural Resources in
North Ca rolina.

Likewise, Duke Energy has demonstrated that it can safely design, construct, and operate lined surface impoundments on top of inactive impoundments. Once again, the liner for the new impoundment can be designed to function as both a cap for the ol d impoundment and the liner system for the new impoundment. All of the landfills and surface impoundments discussed above have been inspected by independent consultants (i.e. civil engineers with professional engineer certifications and expertise in dam an d dike stability). These Brownfield applications reusing closed or dewatered surface impoundments for development and expansion of plant facilities should remain a viable option for electric utilities.

Duke Energy encourages EPA to consider modifying the proposed closure regulations to provide a mechanism to allow a variety of Brownfield projects to be located over surface impoundments being closed under the Subtitle D option. New landfills and closure plans for surface impoundments can be designed to inco rporate a protective cap over the coal ash in the surface impoundment and also function as the landfill liner system. It is inevitable that required closure of some existing surface impoundments will impact NPDES wastewater treatment systems for all plant wastewater systems, not only coal ash sluice water. The construction of new, smaller impoundments with composite liner systems will be required for the alternative water treatment systems to manage the remaining plant wastewaters and stormwater. If there i s no flexibility to redevelop surface impoundments, utilities will be required to use green

- field properties off

- site with consequent property acquisition, permitting, cost, and other major uncertainties.

EPA Response : EPA responds to comments regarding “overfills” and related issues in Comment Response Document Volume 11

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06422

- 33 Organization 1 : Dynegy Inc [4F] Commenter Type: Electric Utility Company

Comment Excerpt Text: EPA Should Confirm that Closure by Constr uction of a New Impoundment or Landfill On Top of a Former CCR Impoundment or Landfill is Permitted

EPA should clarify that proposed 40 C.F.R. § 257. 100 allows for the closure of an existing or inactive CCR impoundment or landfill by constructing a new i mpoundment or landfill on top of it. The new impoundment or landfill would need to be designed in accordance with the applicable requirements of proposed § 257.70 (new landfill) or § 257.72 (new impoundment) and all other operating provisions of the Subtit le D rule for new facilities, including groundwater monitoring, would apply. The closure plan required by proposed § 257. 100 for the former impoundment would appropriately combine the closure provisions of proposed § 257.100 and § 257.101 with the groundw ater monitoring and corrective action provisions of proposed §§
257.90

- 257.98.

It is not clear whether the text of proposed § 257.1 00 allows closure by installation of new181

landfill or surface impoundment on top of a former disposal unit. For example, whi le proposed § 257.100(e) would allow for alternative final cover design, proposed § 257.100(d) would require the final cover system to include a six

- inch erosion layer of earthen material capable of sustaining native plant growth, as well as a minimum l8

- i nch infiltration layer of earthen material. Such layers of vegetative cover or infiltration cover would not be needed if a new landfill/impoundment meeting applicable design standards is constructed on top of the former disposal unit. Thus, EPA should conf irm that it is permissible to close a CCR impoundment or landfill by constructing a new impoundment or landfill on top of it by excluding the earthen cover and vegetative cover requirements from proposed § 257.100 when a new impoundment or
landfill is buil t on top of a former CCR landfill or impoundment.

EPA Response : EPA responds to comments regarding “overfills” and related issues in Comment Response Document Volume 11 and elsewhere in the preamble

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 31 Organization 1 : Avista Corp. [4P] Commenter Type: Electric Utility Company

Comment Excerpt Text: Colstrip’s operator, PPL Montana, successfully developed a lined waste water surface impoundment with leakage detection and collection system on top of a close d portion of a CCR disposal impoundment. This allowed the new impoundment to be sited within the existing footprint of the permitted and monitored waste disposal area. Therefore, additional lands were not required to be developed and could still be leased to local ranchers. Avista believes EPA should allow for the dewatering of existing CCR impoundments followed by development of a landfill that includes the installation of a composite liner (or equivalent) with a leachate collection system, to provide an e nvironmentally safe disposal location for future CCRs.

EPA Response : EPA responds to comments regarding “overfills” and related issues in Comment Response Document Volume 11 and elsewhere in the preamble

.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 36 Organization 1 : Maryland Department of the Environment (MDE) Commenter Type: State Government

Comment Excerpt Text: Proposed Regulation 40 CFR 257.100 : It is noted that some States have industrial waste or CCR regulations that require specific minimum desig ns that are at least as good if not superior to the minimum standards in the proposed regulation. Providing a mechanism to acknowledge and accept superior designs would not only make the environment safer, it would also make it easier for operators to comp ly with duplicative regulations. It is recommended that a provision be inserted allowing for alternative cap designs that are: 1) Approved under State regulations for CCR landfills and 2) Demonstrably equal or superior in performance to the cap specified in the proposed rule, as18 2

determined using appropriate HELP modeling or other models accepted by EPA.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 47 Organization 1 : Ohio Environmental Protection Agency [4FF] Commenter Type: State Government
Other Sections: 4.7 4.4.8.1 4.4.8.2

Comment Excerpt Text: Closure criteria [Sec. 257.100] General comments.

• The climate of Ohio is continental, characterized by a relatively large range of seasonal variability with cold winters and warm, humid, summers. Research from the Alternative Cover Assessment Program indicates that soil

- only caps are ineffective in the long term for minimizing
infiltration under climates like that in Ohio. A n FML should be made a standard component of the cap system which the alternative provision in 257.100(e) can eliminate based on regional
climatic conditions.

• It is not clear whether Sec. 257.100(d)(1) establishing permeability requirements intended to apply to the infiltration layer in paragraph (d)(2) or to establish some sort of separate barrier layer. The language in paragraph (e)(1) seems to favor the former interpretation but clarification is necessary.

EPA Response : EPA responds to this commen t in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 56 Organization 1 : Electric Power Research Institute (EPRI) [4BBB] Commenter Type: Trade Association
Other Sections: 4.4.5.1.2

Comment Excerpt Text: Alternative Designs

US EPA requests information on whether to allow alternatives to the prescriptive design measures in the Proposed Subtitle C and Subtitle D rules. The proposed National Rules cover a broad range of geographic, climatic, and hydrogeologic conditions encompassin g most of the United States. In some western areas where power plants are currently located, the total rainfall is less than 10 inches per year. Unlike municipal solid waste, dry management of CCRs has the advantage of not introducing any additional free l iquids into the landfill with the waste material. This offers additional potential avenues for demonstration of acceptable alternatives to standard cap and liner requirements.183

The most common and well accepted examples are alternative landfill caps. Water balance caps (also known as evapotranspirative caps) have been used successfully at hazardous and nonhazardous disposal sites in the U.S., most commonly in the western states. Water balance caps make use of native plant species for water utilization durin g the growing season, and storage capacity of the soil during periods when plants are dormant. Extensive evaluation of water balance caps was performed by the Desert Research Institute in a series of demonstration projects under the Alternative Cover Asses sment Program (ACAP), part of the US EPA National Risk Management Research Laboratory’s Superfund Innovative Technology Evaluation [Footnote 11: http://www.epa.gov/nrmrl/lrpcd/rr/projects/80403.htm]. One site in the ACAP Program was at the Coal Creek Power Plant in Underwood, North Dakota. Side by side evaluations of conventional and water balance caps were assessed at more than 10 sites, and in some cases, the ET caps were found to allow less infiltration than composite cap designs. The application of wate r balance covers is well documented in a recent book published by the American Society of Civil Engineers (Albright et al., 2010). If carefully implemented, this approach may be applicable in some locations in the eastern U.S.

Similarly, alternative liner s may be acceptable in some geographic settings. Coal fly ash has extremely low moisture content at the time of collection by the ESP or baghouse. As a result, it has a moisture deficit, meaning that it will retain a certain volume of water when exposed to atmospheric conditions. High calcium fly ash, such as that associated with some subbituminous and lignite coals burned in the western U.S., also undergoes hydration reactions on exposure to water, further utilizing excess moisture. Placing ash in layers d esigned to utilize any excess moisture, and then covering with a low permeability cap or a water balance cap, can effectively minimize percolation through the ash. EPRI performed a field and modeling study of this concept at a western power plant burning s ubbituminous coal. The results supported the low percolation potential for the site, and were used to help obtain state approval for an alternative to the standard composite liner requirement.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Section 4.4.8.6

- EPA requests suggestions for other methods to allow O/O of CCR LFs and
SIs to account for site

- specific conditions that provide a lower degree of individual facility discretion, such as a list of approved cover designs (352 09)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06838

- 23 Organization 1 : Minnesota Pollution Control Agency (MPCA) [4CCC] Commenter Type: State Government

Comment Excerpt Text: Surface Impoundment Closeout:

The MPCA supports the allowance of variance from closeout requirements if it is demonstrated that a surface impoundment can be safely operated in a manner that minimizes risk. If variances from closeout are allowed, the MPCA requests that specific criteria for approving such variances
be identified in th e final regulations.184

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Section 4.4.8.7

- EPA solicits comment on propriety of including provision for removing deed notation once all CCRs removed from facility and EPA requests info on suggested alternatives to state oversight to provide for facility accountability (35209)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 22 Organization 1 : We Energies [4WW] Commenter Type: Electric Utility Company

Comment Excerpt Text:
COMMENT: We Energies takes the position that a facility which has met the conditions of clean closure via complete removal of CCRs from the facility should be offered the option of removing a deed notation on the property consistent with the approach taken in the MSWL F rule. An alternative to the deed notification provision could be a Geographic Information System (GIS) registry used by the State of Wisconsin

– WDNR for environmental remediation sites or the Bureau for Remediation and Redevelopment Tracking System (BRR TS).

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 156 Organization 1 : Kentucky Department for Environmental Protection [4AA] Commenter Type: State Government

Comment Excerpt Text: The Commonwealth supports this approach since it matches our current rules. Currently, when a surface impoundment is no longer used, and loses its KPDES (NPDES) permit, it loses its permit

- by

- rule in 401 KAR 45:060. The only recourse left is to either (a) close with waste in place as a landfill (including doing groundwater monitoring and cap maintenance for five years), or (b) remove all waste to another disposal facility. Only owners or operators of closed landfills must file deed notifications pursuant t o 401 KAR 45:110, Section 5(7):

"(7) The owner or operator of a special waste landfill shall record a notice that shall in perpetuity notify any potential purchaser of the property of the location and time of the operation of the facility, the nature of t he waste placed in the site and a caution against future disturbance of the area. This notice shall be recorded in accordance with KRS Chapter 382 and proof of recording shall be submitted to the cabinet prior to acceptance of certification of closure of t he landfill."

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 29 Organization 1 : Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Co mpany, Gulf Power Company, and Mississippi Power Company Commenter Type: Electric Utility Company [4C]185

Comment Excerpt Text: 8. Deed Notation Requirements

Any federal deed requirement should integrate with and defer to state laws governing property
and deed annotations, particularly as to matters of form and procedure. EPA’s standards should not interfere or conflict with existing state property laws that provide for environmental covenants, whether pursuant to state

- specific enactments of the Uniform En vironmental
Covenants Act or otherwise.

EPA should also revise 257.100 to include a removal of deed notation provision comparable to that found in regulations governing MSWLFs. EPA’s MSWLF rules include a provision under which “[t]he owner or operator ma y request permission from the Director of an approved State to remove the notation from the deed if all wastes are removed from the facility.” [Footnote 87: 40 C.F.R. 258.60(j).]

In the proposed CCB rule, EPA requests that proponents of such a removal of deed notation provision “suggest alternatives to state oversight to provide for facility accountability.” [Footnote 88: 75 Fed. Reg. at 35209.] As discussed further below, licensure requirements provide an assurance of integrity with respect to findings o f a registered professional engineer. [Footnote 89: See infra part II.B.10.] It would be sufficient to allow removal of a deed notation upon an application to the state agency supported by a declaration of a licensed professional, subject to
state agency r eview and approval.

EPA Response : EPA responds to this comment in Unit VI. M.5 of the preamble.

Section 4.4.8.8

- Proposed p/c requirements modeled after requirements in 258.60 for 30

- year period with proposed adjusted time periods with certain conditio ns (35209)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 76 Organization 1 : Tennessee Department of Environment and Conservation (TDEC) [4A] Commenter Type: State Government

Comment Excerpt Text: The proposed rule makes provisions for increasing (for cause) or decreasing (per a successful demonstration) the 30 year Post Closure care period. It requires PE certification at end of PC care period, to be placed in the operating record and on the facility's website. This would require
states without a solid waste permitting program for impoundments to develop one.

EPA Response : EPA responds to this comment elsewhere in the preamble and, with respect to the length of the closure period, in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 27 Organization 1 : Southern Company on behalf of itself and its four subsidiaries: Alabama Power186

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company Commenter Type: Electric Utility Company [4C]

Comment Excerpt Text: Alternative periods of post

- closure care are appropriate.

Post

- closure care (“PCC”) for MSWLFs typically addresses such issues as leachate management, groundwater monitoring, and cap maintenance. These kinds of issues are necessarily subject to
site

- spec ific features and conditions, and EPA’s regulations should make allowances for local factors at the site. [Footnote 83: See 75 Fed. Reg. 35128, 35209 (June 21, 2010).] During the PCC period, the facility may be required to engage in de minimis site managem ent and care activities including meeting end

- use obligations, maintaining institutional controls, controlling access, satisfying local ordinances, and fulfilling other applicable regulations. Again, the precise nature and frequency of these kinds of activ ities necessarily varies by site. Local and site

- specific variability means any single fixed deadline is likely to be either unnecessarily strict or inappropriately lenient.

In the past, EPA has identified 30 years as an appropriate PCC benchmark time pe riod, based on a finding that “it may take as long as 30 years for material leaching from hazardous wastes to migrate to groundwater.” [Footnote 84: See 56 Fed. Reg. 50967, 51100

- 02 (Oct. 9, 1991); see also 46 Fed. Reg. 2802, 2819 (Jan. 12, 1981).] EPA has also observed in the context of Subtitle C that the PCC period “should be based only on relevant environmental factors.” [Footnote 85: 46 Fed. Reg. at 2820.] On that point, EPA should allow consideration of factors such as depth to groundwater, soil type, and distance to receptors to establish a scale that better fits site

- specific
conditions.

Southern Company and other industry participants are fully capable of developing site

- specific information, based on a period of sampling and testing results and s ite

- specific conditions (depth to groundwater, cover maintenance procedures, rainfall, etc.), to develop a more precise PCC period. We are also comfortable working with state regulators to ensure agreement as to the method to analyze sampling and testing r esults and to consider specific site conditions as a basis to approve the PCC period. These would be made under the seal and signature of a professional engineer or qualified groundwater scientist, which assures protection of public health and
environment

.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 120 Organization 1 : Earthjustice et. al. [4D] Commenter Type: Advocacy Group

Comment Excerpt Text: A minimum of 30 years groundwater monitoring should be required after final closure of the land disposal unit with financial assurance maintained for a minimum of 60 years. The model cited in the preamble to the proposed rules indicated that groundwater ri sks persist for centuries after CCR is placed in landfills. Therefore, regulations need to require on

- going monitoring once187

groundwater contamination is detected and corrected.

If contaminants from the facility are detected at any time during the 30 year period, corrective actions must be implemented and once the contaminants are reduced to acceptable concentrations, the thirty year monitoring period should restart from the beginning. Likely corrective actions would include cap repair as needed, enhanced hydraulic diversions or
containment structures and in

- situ or extracted groundwater treatment.

Leachate removal and reporting must be an integral part of the post

- closure activities. Studies on hazardous waste landfills (Bonaparte et al., 2002) indicate that the rate of leachate production diminishes during the first 1 to 2 years following closure, reaching negligible amounts typically after 5 years. Unfortunately, there is no data on the diminution of leachate from CCR landfills
after closure. Factors su ch as placement moisture content, precipitation, measures to prevent precipitation from reaching the exposed CCR’s before they are covered, thickness of the deposit, and moisture retention characteristics will influence the volume of liquid retained in the waste at closure and the rate at which the liquid will reach the leachate collection and removal system following the placement of the final cap. Further, it is possible that the concentrations of the
dissolved contaminants in the leachate will increase a s the rate of leachate production decreases, since the dilution effect of precipitation will cease after closure.

Thus, although leachate flows may decrease, any leakage through the liner may increase in concentration during and after closure. Such incre ases, particularly in salt concentrations, could have an adverse impact on the hydraulic conductivity of the clay component of the composite liner, resulting in increased leakage of more concentrated leachates following closure. Therefore,
it is essential that leachate continues to be removed and that monitoring continues for at least 30 years following closure or the implementation of remedial actions required in post

- closure.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 68 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) [4BB] Commenter Type: State Government

Comment Excerpt Text:
Note that Wisconsin statutes set a minimum 40 year post

- closure care period for all licensed landfills, including CCR landfills. This should not be allowed to be truncated by the proposed
rule.

EPA Response : EPA responds to this comment in Unit VI. M.9 of the preamble.

Comment Nu mber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06529

- 53 Organization 1 : NiSource Corporate Services [4I] Commenter Type: Electric Utility Company188

Comment Excerpt Text: Post Closure Care (40 C.F.R. § 257.101)

An owner or operator should be allowed to stop managing leachate if it demonstrates and a registered professional engineer or other qualified environmental professional certifies that leachate no longer poses a threat to human health and the environment. Such an approach would be protective of the environment, is consis tent with how EPA regulates similar wastes, and would reduce the costs imposed upon the regulated community

.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble for the same reasons for requiring the length of the closure period to be 30 years.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06532

- 42 Organization 1 : Southern Illinois Power Cooperative Commenter Type: Electric Utility Company

Comment Excerpt Text: Post Closure Care (40 C.F.R. § 257.101)

An owner or operator should be allowed to stop managing leachate if it demonstrates and a registered professional engineer certifies that leachate no longer poses a threat to human health
and the environment

.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble for the same reasons for requiring the length of the closure period to be 30 years.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07791

- 12 Organization 1 : Georgia Department of Natural Resources (GAEPD) [4DDD] Commenter Type: State Government
Other Sections: 4.4.7 7.1.1.2

Comment Excerpt Text: Groundwater monitoring requirements are established in Rule 391

- 3

- 4

- .14. Groundwater must be monitored throughout the active life of the unit and the post

- closure care period, defined in Rule
391

- 3

- 4

- .12(2) as " ... at least thirty (30) years after the Director has authorized the Closure Certificate ... " Parameters monitored are those in Appendix I and II of 40CFR258; corrective action is specified in Rule 391

- 3

- 4

- .14(34)

- (50).

EPA Response : EPA responds to this comm ent in Unit VI. M

. 9 of the preamble.189

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 40 Organization 1 : Arizona Department of Environmental Quality (ADEQ) Commenter Type: State Government
Other Sections: 4.4.8.3 4.7

Comment Excerpt Text: Pg. 35252 Section 257.100 Closure criteria: Paragraph (b) of this section appears to indicate that a clean closure is possible by removing CCRs and structures and decontamination of all areas affected by releases. Arizona requests that a provision be added to the closure or post

- closure care requirements to exclude facilities that can achieve clean closure in accordance with state soil and groundwater standards from post

- closure care requirements.

EPA Response : EPA responds to this comment in Unit VI. M

. 2 of the preamble.

Section 4.4.8.9

- EPA solicits comment on alternative methods/periods for post

- closure care for CCR disposal units to account for different site conditions, yet still provide methods of oversight to assure facility accountability, given lack of guaranteed state oversight (35209)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 23 Organization 1 : We Energies [4WW] Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: The protective post

- closure care time period is already defined under Wiscons in State Statues Chapters 289 and Michigan Public Acts 451 as 40 and 30 years, respectively. We believe that these state programs are well managed and environmentally protective, and should
be modeled for national standards.

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 157 Organization 1 : Kentucky Department for Environmental Protection Commenter Type: State Government

Comment Excerpt Text: The Commonwealth believes that the number of years of post

- closure should be established in Subtitle D regulations, then owners or operators may apply for a shorter timeframe. The Kentucky Special Waste Program currently provides for a 5

- year post

- closure monitoring period. (Kentucky requires a longer timeframe if corrective action on the groundwater is still in progress). The department again urges state oversight of any alternate request. In this state, the burden would be on the owner or operator, and th e consultant, to show why a shorter postclosure period is protective of the human health and environment.190

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 121 Organization 1 : Earthjus tice et. al. Commenter Type: Advocacy Group

Comment Excerpt Text: Site closure must consist of a cap which is designed to minimize, if not completely eliminate, infiltrating water from reaching the wastes. Caps are required which allow permeabilities less than or equal to that of the liner system placed under the wastes. In order to increase the probability that any cap can achieve this requirement at and after closure, the in

- place wastes must be physically stable enough to minimize differential settlemen t during and after closure. Proper moisture control and compaction of the wastes will be needed to assure maximum physical stability to support the cap. If the hydraulic conditions of the in

- place CCR’s can achieve a permeability of 1 x 10

- 7 cm/sec or less , the synthetic component of the cap could be placed directly on top of the CCR’s, otherwise a layer of compacted clay will be needed to assure that the permeability of the cap is as low or lower than that of the liner.

Studies of the flow of leachate th rough composite liners, consisting of a synthetic (HDPE) layer overlying soils of different hydraulic conductivities clearly indicate that a clay layer with a low hydraulic conductivity (1 x 10

- 7 cm/sec) is required to minimize the flow of leachates throug h occasional holes in the synthetic component of the liner system (Brown et al., 1987). Data from that study showed that leakage through one, 1⁄2 inch diameter hole in an acre of the synthetic component of a liner overlying a clay layer with a hydraulic cond uctivity of 1 x 10

- 7 cm/sec is equivalent to 110 liters of water per year. Leakage through 2 feet of clay compacted to 1 x 10

- 7 cm/sec without a synthetic cover and a hydraulic head of 30 cm of water is over 1700 times greater for an equivalent leakage rat e of 190,000 liters of water per year.

The studies also showed that even with a synthetic component of the liner, the leakage rate through a hole will increase greatly as the hydraulic conductivity of the underlying clay increases. As an example, leakage through one, 1⁄2 inch diameter hole per acre, overlying soil with a hydraulic conductivity of 1 x 10

- 4 cm/sec was calibrated to be 50,000 liters of water per year (Brown and Thomas, 1988).

Liner technology has improved greatly since they were first used i n the early 1980’s. Although there is only limited data available for leakage rates through liners, the data gathered by Bonaparte et al. (2007) showed that the leakage rate through secondary liners at Subtitle C landfills, typically decreased over time. S uch liners, constructed in the mid

- 80’s, typically had leakage rates during active operations of 150,000 liters per acre per year. By the early 90’s, leakage rates were typically 10,000 liters per acre per year. Liners constructed in the mid

- 90’s,
had leak age rates typically in the range of 1,000 liters per acre per year. While these data clearly indicate that liners are not impermeable; they do indicate that more recently constructed composite liners are beginning to approach the theoretical lowest leak ra tes measure in laboratory experiments (Priyantha et al., 1988). These field measurements also support the need for long

- term groundwater monitoring.191

Thus, the best technology to minimize the leakage through landfill caps and liners is to use a composite liner consisting of a synthetic component and a low permeable clay component. At this time, there are no alternative designs available to assure that the permeability of the cap is less than or equal to the permeability of the liner below the waste, and th us, composite layers in both the bottom liner and the cap must be required.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 67 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) Commenter Type: State Government
Other Sections: 4.4.8.10 4.4.8.11

Comment Excerpt Text: The proposal for allowing CCR landfill owners to lengthen or shorten the post

- closure care

per iod, on p. 35209 of the preamble, includes a notification of state and inclusion in record and a request for comment on alternative methods that assure accountability. It is unrealistic to expect any owner to voluntarily extend the post

- closure care period , and it is unacceptable for owners to decide for themselves to shorten it, without a formal review by regulatory agencies, either the States or EPA. This provision should either be dropped or be allowed only in the context of a review and approval mechani sm by State regulatory agencies. The same should be applied to the suggestion for the provisions to increase flexibility, specifically allowing owners to self

- certify the stoppage of leachate collection and other routine care items or to cease repairing di sturbances
of the final cover.

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 29 Organization 1 : SCANA Corporation Commenter Type: Electric Utility Company

Comment Excerpt Text: Closure Criteria (§ 257.100). Add a paragraph allowing for the consideration of alternative final cover systems that provide equivalent protection of human health and the environment.

EPA Response : EPA responds to this comment in Unit VI. M

. 3 of the prea mble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 43 Organization 1 : Arizona Department of Environmental Quality (ADEQ) Commenter Type: State Government
Other Sections: 4.7 4.2.2192

Comment Excerpt Text: Pg. 35253, Section 257.101 Post

- closure care requirements: The Director of an approved state must have the ability to review and approve any request for reduction in the 30

- year post

- closure care period. Arizona requests that paragraph (b)(1) be modified as follows (modification in italics):

(1) Dec reased if the owner or operator of the CCR landfill or surface impoundment demonstrates that the reduced period is sufficient to protect human health and the environment and this demonstration is certified by an independent registered professional engineer and approved by the Director of an approved state. Upon approval, the demonstration shall be placed in the operating record and on the owner’s or operator’s publicly accessible Internet site.

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.

Section 4.4.8.10

- EPA solicits comment on need for and propriety of self

- certified stoppage of leachate management, such as in 258.61(a)(2), given lack of guaranteed state oversight (35209)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06251

- 24 Organization 1 : We Energies Commenter Type: Electric Utility Company

Comment Excerpt Text: COMMENT: Protective leachate management and other post

- closure activities are already required during the post

- closure care period, defined under Wisconsin State Sta tues Chapters 289 and Michigan Public Acts 451 as 40 and 30 years, respectively.

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 158 Organization 1 : Kentucky Department for Environme ntal Protection [4AA] Commenter Type: State Government
Other Sections: 4.4.8.11

Comment Excerpt Text: The Commonwealth prefers for any variance or alternate specification to be requested by the site owner or operator using a full set of state rules requiring application, prior review, public notice and permit issuance.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 28 Organization 1 : Southern Company on behalf of itself and its four subsidiaries: Alabama Power193

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company Commenter Type: Electric Utility Company

Comment Excerpt Text:
Self

- certified stoppage of leach ate management should be available.

A principal object of a closure plan is to demonstrate that any leachate has stopped. The methods to detect and measure leachate via groundwater sampling and testing are straightforward. Once a facility is able to demo nstrate over a period of time that leachate is no longer being generated, there is no purpose for continued leachate monitoring and management. [Footnote 86: See 75 Fed. Reg. at 35209.] A determination in support of a self

- certified stoppage would be made under seal and signature of a professional engineer or groundwater scientist, again assuring protection of public health and the environment.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble for the same reasons for requiring the length of the closure period to be 30 years.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 122 Organization 1 : Earthjustice et. al. Commenter Type: Advocacy Group

Comment Excerpt Text: Self stoppage of leachate man agement should not be permitted. Any increase in the production of leachate following closure is an indication that the cap has been breached. The potential for release of contaminants to the groundwater and the need for prolonged groundwater monitoring,

o r even groundwater remediation can be greatly reduced by removing all of the leachate during
post

- closure care and by repairing any breach of the cap.

Because of the size of the CCR landfills and the physical principles controlling the release of
leachat e to the drainage system, it will take many months if not years, for a breach in the cap to cause increases in leachate production. Thus, once the initial leachate production reduces to de minimis amounts, measurements of accumulated leachate once a year o r even once every other year should be sufficient throughout the remainder of the post

- closure period to assure that no significant breaches have occurred.

In instances where deliberate, or inadvertent disturbances of the cap have occurred during the

pos t

- closure period, leachate production must be monitored more intensely.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble for the same reasons for requiring the length of the closure period to be 30 years.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 67 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) Commenter Type: State Government194

Other Sections: 4.4.8.9 4.4.8.11 Comment Excerpt Text: The proposal for allowing CCR landfill owners to lengthen or shorten the post

- closure care period, on p. 35209 of the preamble, includes a notification of state and inclusion in record and a request for comment on alternative methods that assure accountability. It is unrea listic to expect any owner to voluntarily extend the post

- closure care period, and it is unacceptable for owners to decide for themselves to shorten it, without a formal review by regulatory agencies, either the States or EPA. This provision should either be dropped or be allowed only in the context of a review and approval mechanism by State regulatory agencies. The same should be applied to the suggestion for the provisions to increase flexibility, specifically allowing owners to self

- certify the stoppage of leachate collection and other routine care items or to cease repairing disturbances
of the final cover.

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 76 Organization 1 : Prairi e State Generating Company, LLC (PSGC) Commenter Type: Electric Utility Company

Comment Excerpt Text: Post Closure Care (40 C.F.R. § 257.101) An owner or operator should be allowed to stop managing leachate if it demonstrates and a registered professional engineer certifies that leachate no longer poses a threat to human health and the environment. Such an approach would be protective of the environment, is consistent with how EPA regulates similar wastes, and would reduce the costs imposed upon the regula ted community.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble for the same reasons for requiring the length of the closure period to be 30 years.

Section 4.4.8.11

- EPA solicits comment on appropriateness of adopting a provision to allow any other disturbance provided O/O demonstrates no increase to potential threat to HHE, and EPA is also interested in suggested mechanisms providing facility flexibility/oversight for post

- closure uses (35209

- 35210)

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 67 Organization 1 : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC) Commenter Type: State Government
Other Sections: 4.4.8.9 4.4.8.10

Comment Excerpt Text:195

The proposal for all owing CCR landfill owners to lengthen or shorten the post

- closure care period, on p. 35209 of the preamble, includes a notification of state and inclusion in record and a request for comment on alternative methods that assure accountability. It is unrealis tic to expect any owner to voluntarily extend the post

- closure care period, and it is unacceptable for owners to decide for themselves to shorten it, without a formal review by regulatory agencies, either the States or EPA. This provision should either be dropped or be allowed only in the context of a review and approval mechanism by State regulatory agencies. The same should be applied to the suggestion for the provisions to increase flexibility, specifically allowing owners to self

- certify the stoppage of leachate collection and other routine care items or to cease repairing disturbances

of the final cover.

EPA Response : EPA responds to this comment in Unit VI. M of the preamble for the same reasons for requiring the length of the closure period to be 30 years. See also Unit VI.M.9.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 110 

### Organization 1 

### : Earthjustice et. al. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group



### Commen t Excerpt Text: I have reviewed the comments on groundwater monitoring prepared by Ben Ross and I concur with these comments. Groundwater monitoring must begin prior to the disposal of waste with active monitoring during operation of the facility. After closure of the sit e, groundwater monitoring must be continued for a minimum of 30 years. If during this time contaminants from the facility are detected, corrective actions must be implemented. Upon completion of the groundwater remedial activities, the closed facility will begin a new 30 period of post

- closure monitoring.

EPA Response : EPA responds to this comment in Unit VI. M

. 9 of the preamble.