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 2014
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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 regulations 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 national 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

received 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 additional 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 available 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, EPA/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) 566–1744, 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 

addresses 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 RCRA, 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 Use 
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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.
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Section 4.4.8 - Closure and post-closure care (35207-35210)

Comment Number: EPA-HQ-RCRA-2009-0640-06298-28

Organization1: 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 Rule 

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, including 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 monitoring. Closure requirements are discussed in Unit VI.M of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-29

Organization1: 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 seismic 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 

notations to the deed. Closure requirements are discussed in Unit VI.M of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-14

Organization1: MidAmerican Energy Holdings Company (MidAmerican) (4B)

Commenter Type: Electric Utility Company
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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 close 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 surface 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 were 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 contain 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 the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06299-15

Organization1: 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 among 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 program 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 finalizes 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 state 
7

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 ten 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 regard 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

Organization1: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 Standards 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 

comments 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 

approximately 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 contains 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 the 
8

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 which 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 procure 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 substantially 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 USWAG 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

Organization1: 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 impoundments 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 capped, 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 adequate 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. In addition, the 

commenter did not provide the Agency with information supporting why 1 year is sufficient 

to complete closure of all CCR units.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-123

Organization1: 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 regulatory 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 interpret 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, annual 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 the cap, or if 

the contaminants of the concern are detected in the quarterly 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 internet 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-2009-0640-06357-6

Organization1: 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 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 this option.

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. 75 Fed. Reg at 35244 (proposed 40 C.F.R. § 257.71(g)). Because 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 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 

meeting these schedules.

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 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, 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 

close their disposal units in the timeframes EPA proposes, due to the size of certain CCR 
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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 comply with EPA’s closure timeframe.

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 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 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 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 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, 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06357-7

Organization1: 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 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 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. Under Kansas and Missouri regulation, the closure plans 

can be approved to take into account the time of year, geology, 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.
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EPA Response: EPA responds to this comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06422-32

Organization1: 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 closure 

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

Organization1: 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 required 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 

be 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 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 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 require 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 regulatory deadline of 7 years. Then closure of existing 
13

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

Organization1: 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 closures, 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 becomes 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 significant 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

Organization1: 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 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 

Subtitle 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 NIPSCO, NiSource 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 
14

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 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 disposal capacity 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/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 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 the 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 

Subtitle 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 frame. 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 obtain 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 

complete, 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 outage. Given the 

length of time required to retrofit or close a CCR surface impoundment, NIPSCO expects the 
15

generating unit outage to be considerably longer than a typical outage. Given the scope of the 

proposal, NiSource expects many utilities to undergo extended 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 

these 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 approved 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 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 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

Organization1: 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 

Subtitle 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, SIPC 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 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 

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 demonstration that there exists a lack of alternative disposal capacity and the 
16

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 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 surface impoundments. The proposal provides that an owner/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 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 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 closed 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 wastes. 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 expected 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 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 

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

Organization1: 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 Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06832-25

Organization1: 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 CCR 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 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, 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 alternative 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 should be completed within 3 years. An extension clause 

should be added for consideration of very large existing CCR surface impoundments such as 
18

those greater than 75 acres. In addition, the EPA should add a “force majeure” clause covering 

events beyond the 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 event 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 exercise 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 applicable 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, unanticipated 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 necessary 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 

addition, the Agency considered the excavation project data provided by the commenter in 

developing the timeframes for closure.

Comment Number: EPA-HQ-RCRA-2009-0640-06832-30

Organization1: 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 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: <20 acres; Completion Time: 12 months

Closure 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 specific
19

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

Comment Number: EPA-HQ-RCRA-2009-0640-06833-11

Organization1: 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 impoundments. 

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 realistically 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 construction 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 number 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 engineering 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. § 257.71(g)). Because these obligations 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 

take 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

Organization1: Dominion Resources Services, Inc. (4M)
20

Commenter Type: Electric Utility Company

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 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 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 option, 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 disposal 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 would 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 or 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 landfills (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 contained 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 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 CCR surface 

impoundments. As stated previously, Dominion's preliminary studies conducted to determine 
21

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 minimum of24 

months to complete.

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

Comment Number: EPA-HQ-RCRA-2009-0640-06833-13

Organization1: 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 continue 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 require 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 commonly 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

Organization1: 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 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 potential closure requirements. 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 for 
22

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 impoundment 

closure requirements.

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

11.

Comment Number: EPA-HQ-RCRA-2009-0640-06851-10

Organization1: 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 be 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 required 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 activities 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 at 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 

received 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

Organization1: 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 close 
23

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 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 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 surface 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 working 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 without 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 

possible for large impoundments.

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. 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

Organization1: 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

Organization1: 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 to 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 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). 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 (proposed 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

Organization1: 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 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 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 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 close 
25

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 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 [Footnote 3: 

There is an exception to this requirement 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 

(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. 

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 Colstrip 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. 

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. 

Most surface impoundments, on the other hand, must be, to some extent, 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 when 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 effort in its 

Subtitle D proposal to consider those state programs that provide a means to convert CCR 
26

surface impoundments to landfills through dewatering and other appropriate requirements. After 

these 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 potential 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 plants 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 this comment on 

“overfills” in Comment Response Document Volume 11.

Comment Number: EPA-HQ-RCRA-2009-0640-06865-20

Organization1: 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 approved 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 should 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 require 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 

associated 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 variable 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 areas.
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

Organization1: 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 provided 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

Organization1: 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 nonhazardous waste under RCRA Subpart D. MP notes that the Minnesota regulations and NPDES 

permit requirements addressing ash handling, storage and impoundments already meet or exceed 

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 closure 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 with any new regulatory 

provisions. EPA should also clarify that inactive ash storage areas are not targeted for additional 

closure measures under Subpart D.

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, 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

Organization1: 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 design 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 regulation 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 

• Financial 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

Organization1: 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 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 

Subtitle 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 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 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 demonstration 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 CCR 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 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 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

Organization1: 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 

these 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

Organization1: 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 section 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 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 of the 

preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-10017-7

Organization1: 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 necessary, 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

Organization1: 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 the 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 surface 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

Organization1: 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 location 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 inappropriately 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 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.

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, 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. § 257.71(g)). Because these obligations may be impossible to fulfill and would impose 

significant operational costs on owners/operators, 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 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, is 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 [Footnote 38: Even though the 
32

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 health 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 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 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. [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 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 (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, 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 

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 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 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 closure. 

Surface impoundments, on the other hand, must be entirely dewatered before closure can even 
33

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 

from 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 ensure 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 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 closure time limit, putting 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 

months. 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 

impoundments, 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 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 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 these 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 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.
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

Organization1: 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 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. 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). 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 (proposed 40 

C.F.R. § 257.71 (g)). Because these obligations may be impossible to fulfill and would impose 

significant 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 areas" 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 facilities 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 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 
35

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 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 comply 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 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 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 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 closure 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 need 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 
36

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 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 these 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 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

Organization1: Kentucky Department for Environmental 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 Number: EPA-HQ-RCRA-2009-0640-06298-26

Organization1: 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 can 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 conditions 
37

that are protective of both groundwater 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 requirements, 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

Organization1: Earthjustice et. al. (4D)

Commenter Type: Advocacy Group

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 entirely 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 cover 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 

layer, 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, such 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 method 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 the 
38

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 VI.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 future impoundment of water, sediment, or slurry.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-112

Organization1: 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-step 

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 information 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 include 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

Organization1: 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, but 
39

includes a requirement that the cap permeability be no greater than that of the bottom liner 

system. The proposed design may be sufficient for closure of an existing CCR landfill or 

impoundment that lacks a previously approved closure plan and design. 

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

seems to mean that a new landfill or impoundment would have to have a composite cap, 

including clay soil and geomembrane. This is compatible with current Wisconsin regulations 

MSW landfill regulations, which require a composite liner and composite capping layer. The 

final rule should be specific about this issue. 

EPA Response: EPA responds to this comment in Unit VI.M.3 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-66

Organization1: 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 also essential for a review mechanism for proposals for longer closure periods. Our experience 

is that weather and climate have significant effects on the time needed to properly construct a 

final cover system, and that delays due to weather are usually justifiable. A set time period for 

closure without provision for review of extensions ignores the practical difficulties involved in 

stabilizing weak wastes or of completing cap if closure starts before cold or rainy weather sets in. 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06416-86

Organization1: 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

Commenter1: 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 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-2009-0640-06517-2

Commenter1: 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 requirements 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

Organization1: West Virginia Department of 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 surface impoundment contains 
41

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 elsewhere. Existing CCR landfills must be able 

to continue to operate until remaining capacity is exhausted. 

To allow for inclement weather conditions, 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 

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-2009-0640-06956-7

Organization1: 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 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 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. 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 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 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 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 
42

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

Comment Number: EPA-HQ-RCRA-2009-0640-08226-47

Organization1: 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 indicates 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 
43

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 comment in Unit VI.M.3 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08270-5

Organization1: 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 efforts 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 rule. 

One important 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 supports 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 safeguards 

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 the 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 their 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, however, 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 a 
44

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. geosynthetic clay liners) would be more appropriate that the one proscribed 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: EPA-HQ-RCRA-2009-0640-09274-14

Organization1: 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 

their 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 realistic, 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 responds to this comment in Unit VI.M.4 of the preamble.
45

Comment Number: EPA-HQ-RCRA-2009-0640-09885-22

Organization1: 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 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 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 leachate 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 requirements.” 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 

actually 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 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. 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.

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 establish 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 establishment of a closure plan, with set schedules, is the most 
46

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 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

Organization1: 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 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 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

Organization1: 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 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 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

Organization1: 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 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. 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). 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 (proposed 40 

C.F.R. § 257.71 (g)). Because these obligations may be impossible to fulfill and would impose 

significant 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 areas" 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 facilities 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 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 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 comply 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 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 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 
49

of acres in size (as well as the likelihood that other units may need to close in the 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 before 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. 

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, 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 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 these 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 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

Organization1: 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 more 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 closed within five years of the 
50

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 groundwater 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 should 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 responsibility 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 structural 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 owner 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 groundwater 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 release contaminants to groundwater or surface water.

EPA Response: The Agency agrees with the commenter that CCR surface 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-2009-0640-06298-31

Organization1: 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 construction.

-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 capacity 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 surface impoundment fail or have releases to 

groundwater and/or surface water.

-The initial plans should indicate whether the surface impoundment will be used for CCR 
51

treatment or for waste treatment and CCR disposal.

EPA Response: The Agency agrees with the commenter that CCR surface 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

Organization1: 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 to 

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 integrity 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 less 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 plans, 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, closure requirements are discussed in Unit VI.M of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06300-24

Organization1: 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 Respects 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 impoundments 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 physically 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 contemplated 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 completion 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 regulatory 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 objective 

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

Organization1: 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 applicable 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 

impoundment 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 close by removing 

liquid wastes or solidify the remaining waste. NRG believes that it would be impossible to 
53

comply with this requirement within the proposed time frame because dewatering the 

impoundment alone can take significantly longer. EPA’s proposed closure 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 surface 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 should 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 

conversion 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 related issues in Comment Response 

Document Volume 11.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-126

Organization1: 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 concentrations 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 groundwater 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 provisions: 

a. Adequate engineering controls were put in-place during excavation of the wastes to prevent 
54

the transport of contaminants from the CCR waste to the surface water adjacent to the 

impoundment and the groundwater underlying the impoundment. 

b. Adequate 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 impoundment. 

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 professional 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

Organization1: 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 too 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 

impoundment 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 remaining 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 dewatered 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

Organization1: Duke Energy (4MM)

Commenter Type: Electric Utility Company

Comment Excerpt Text:

Duke Energy agrees that existing surface impoundments that are not operating in accordance 
55

with performance-based standards (and cannot otherwise be brought within the standards), or 

have reached their maximum storage capacity and where no dredging 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 requirement 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

Organization1: Duke Energy (4MM)

Commenter Type: Electric Utility Company

Comment Excerpt Text:

In addition, EPA proposes to require a utility to begin closure of surface impoundments 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 surface 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 brought 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, surface 

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 closure 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 drains) 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 power 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 eliminate all 
56

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 and 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 surface 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 relate 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 facilitate 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

Organization1: 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 liner 

system. The proposed design may be sufficient for closure of an existing CCR landfill or 

impoundment that lacks a previously approved closure plan and design. 

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

seems to mean that a new landfill or impoundment would have to have a composite cap, 

including clay soil and geomembrane. This is compatible with current Wisconsin regulations 

MSW landfill regulations, which require a composite liner and composite capping layer. The 

final rule should be specific about this issue. 

EPA Response: EPA responds to this comment in Unit VI.M.3 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06416-66

Organization1: 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 provisions for extending deadlines, based on an absence of state authority 

and a potential for abuse if a site owner made its own decisions about necessary time for 

completion. We agree with the need to establish deadlines for closure work, but we believe that it 

is also essential for a review mechanism for proposals for longer closure periods. Our experience 

is that weather and climate have significant effects on the time needed to properly construct a 

final cover system, and that delays due to weather are usually justifiable. A set time period for 

closure without provision for review of extensions ignores the practical difficulties involved in 

stabilizing weak wastes or of completing cap if closure starts before cold or rainy weather sets in. 

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

Comment Number: EPA-HQ-RCRA-2009-0640-06422-31

Organization1: Dynegy Inc (4F)

Commenter Type: Electric Utility Company

Comment Excerpt Text:

The Proposed Closure Timeframes for Surface Impoundments 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 impoundment 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 210-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 factors 

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. 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; significant earthmoving work; and securing the 

specialized labor and equipment/materials required to perform these activities. These activities 
58

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 may 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) and 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 potentially 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 commenced. 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.

Furthermore, 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. 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 technical 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 concurrently 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 managing 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 database 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

Commenter1: 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 post-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

Commenter1: Anonymous (4CC)

Commenter Type: Anonymous

Other Sections: 4.4.8.1 

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 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

Organization1: 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 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 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 elsewhere. 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 that 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

Organization1: 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 CCR 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 surface 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 

disposal 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 following 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 activities.

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. Instead, 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 flexibility 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

Organization1: 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 urging 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 comments 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 surrounded 

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 have 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 characterized 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 existing 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 pressure 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 procedure 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 permeable, 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 

consists 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 the 
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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

Organization1: 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

Organization1: 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 and 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 option, 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. 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 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 is 
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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 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 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 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 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 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 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, 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 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 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 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: EPA responds to this comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-07534-19

Organization1: Aquaterra Environmental Solutions, Inc. (4PP)

Commenter Type: Other Company

Other Sections: 3.4.1.4 3.7.4 
64

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 intentional, 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 consistent with §264.1305 and §265.1305.

EPA Response: This comment pertains to the co-proposed approach under subtitle C of 

RCRA. No response is necessary here to this comment.

Comment Number: EPA-HQ-RCRA-2009-0640-07534-3

Organization1: Aquaterra Environmental Solutions, Inc. (4PP)

Commenter Type: Other Company

Other Sections: 4.4.3 3.4.1.4 

Comment 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 proposed 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 facility 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 

guidance 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

Organization1: 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 indicates 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 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 comment in Unit VI.M.3 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08253-32

Organization1: 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 rating 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 size 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 directly with their states to agree on appropriate time frames, conditions 
66

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

Organization1: 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 disposal 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 significant 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 surface 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 relevant 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

Organization1: 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 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, EPGA believes there will be some existing landfills and surface 

impoundments that cannot 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 landfills, 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 closed 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 installed. 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 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 hydrologist. 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 responds to this comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-08865-7

Organization1: 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

Organization1: 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 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 

their 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 realistic, 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 responds to this comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-24

Organization1: 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 designed 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 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 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

Organization1: Progress 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 environmentally 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 leachate 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 requirements.” 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 

actually 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 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. 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 and 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 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 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

Organization1: 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 Island 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 

existing “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

Organization1: 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 infeasible 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 disturbance 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

Organization1: 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

Organization1: Pennsylvania Department 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 presumption 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

Organization1: 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 will be problematic, particularly 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 this 

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 impoundments 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 runoff 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 preamble. 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

Organization1: Southern Company [5DD]

Commenter Type: Electric Utility Company

Classification: 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 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 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; site-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 timeframes 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

Organization1: 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 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 Energy’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 scenarios 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 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 bottom 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 manage 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 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 
74

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 

initiate 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 disposal 

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 CCRs 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 by 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 cause 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 closure 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, may 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, including 
75

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 conditions 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 approval.

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-2012-0028-0059-4

Organization1: 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 prefers 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 findings.

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 

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 closure 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

Organization1: Utility Solid Waste Activities Group (USWAG) [5A]

Commenter Type: Trade Association
76

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 

when 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 member 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 dewatered. 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 lengthens 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 explained 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 condition 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 that 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 closure 

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 needed 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 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 to 

readily revise 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 permitted 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 surface 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 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 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 complete 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, or
78

(2) In accordance with a closure plan certified by an independent professional engineer 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 impoundment 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

Organization1: 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 Wastes 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 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 
79

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 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 rebuttable 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, 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 utility 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 Energy, 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 Information 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 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 suggests 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 have 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 

impoundments 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 management unit, it is 
80

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 needed 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 

still 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 

impoundment 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 will 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 been 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 regulatory 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 approach. 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 the 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 concerns over this proposal because such information could present security issues and 
81

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 any 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 the 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

Organization1: 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 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 CCR. A landfill or impoundment that ceases to receive CCR 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 receipt of any regulated waste stream, such as low volume 

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 receiving 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 will 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 impoundments remaining open to continue managing legacy CCR 
82

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 directive 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 allow 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 an 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 be 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 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 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 function 

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 triggering 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-RCRA-2012-0028-0060-9

Organization1: 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 that 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, EPA should also specifically identify these 
83

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 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 related issues in 

Comment Response Document Volume 11.

Comment Number: EPA-HQ-RCRA-2012-0028-0064-2

Organization1: 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 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 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 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 

(“CW A”). 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, cooling 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 
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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 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 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-2012-0028-0064-3

Organization1: Florida Electric Power Coordinating Group Inc. (FCG) [5Q]

Commenter Type: Trade Association

Classification: NODA2 Substantive

Comment Excerpt Text:

In the context of closure timeframes, the 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 wash 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 

operation 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 affecting 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 minimum, 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 sufficient 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 protective 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 the 
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commenter in developing the timeframes for closure.

Comment Number: EPA-HQ-RCRA-2012-0028-0065-4

Organization1: 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 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 promulgated, 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 the 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 closurerelated 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 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 frames.” [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 subfreezing temperatures and frozen soils.

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

Comment Number: EPA-HQ-RCRA-2012-0028-0066-5

Organization1: Arizona Public Service Company (APS) [5R]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive
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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 future. 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 under 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

Organization1: American Electric Power (AEP) [5FF]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Other 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; field 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 safety, 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 environment, 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.
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• Depending on the proposed closured design, the stabilization of the CCR surface may in itself 

require a significant 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 availability 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 for 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 installation 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 regulated 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 that 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 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 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 or 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 closure 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 obtaining 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 authorized by a state authority.
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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

Organization1: 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 (ELGs) 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

Organization1: 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 from 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 operational 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 dikes forming the impounding structure. Based on this acceptable 

drawdown rate, significant 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 

ELG 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.
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Comment Number: EPA-HQ-RCRA-2012-0028-0068-6

Organization1: 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 operations 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 selfcementing 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 moisture 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, 

transportation, and carbon production impacts.

EPA Response: EPA responds to this comment in Units VI.M.3 and M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2012-0028-0069-5

Organization1: 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 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-2012-0028-0070-4

Organization1: Ameren Energy Resources Company, L.L.C (AERC)

Commenter Type: Electric Utility Company
90

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 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 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

Organization1: 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 but 

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

Organization1: 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) following 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 regulatory 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 contradictory. 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

Organization1: 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 streams 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 rule 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

Organization1: Nebraska Public 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 NODA 
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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 comments 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 facility 

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

Organization1: Alliant Energy Corporate Services, Inc. [5M]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Other 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 alternate 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 to 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 

relevant 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/topography and other sitespecific 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 Alliant 
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Energy operates, CCR landfill closure is a regulated activity. Under these circumstances, where a 

state reviews, approves, oversees, and certifies the closure process, 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 program; 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

Organization1: 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 regulated/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 needed 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 streams 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 event 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

Organization1: Xcel Energy

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive
94

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 following, 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 plants 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 describes 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

The 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. Closure 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 that 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 pond. 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 Water 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 impoundments at the Facility. After subsequent 

communication between PSCo, EPA and the Colorado State Engineer’s Office, and review of 
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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

Organization1: 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 year 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 time 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 may 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 wastewater 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 maintain 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 is 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 impoundment. 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 pose 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 

closure initiation that may be rebutted by a facility by identifying legitimate reasons why the 
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impoundment needs to stay open. This added flexibility will allow the facility to utilize the 

impoundment for legitimate purposes while deferring the immediate closure 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 treatment 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 impoundments.

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

Comment Number: EPA-HQ-RCRA-2012-0028-0083-4

Organization1: Iowa Department of Natural Resources (DNR) [5Z]

Commenter Type: State Government

Classification: NODA2 Substantive

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. five 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

Organization1: MidAmerican Energy Holdings Company (MidAmerican) [5G]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Excerpt Text:

As a point of clarification, MidAmerican 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 continued use of surface impoundments to manage wastewater and identifies 

the impoundments as the best practicable control technology currently available for several 
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wastestreams, including legacy ash transport water, CCR leachate, and cooling tower blowdown. 

Under 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 of 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 units 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 impoundment. 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 flexibility 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

Organization1: 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, electricity 
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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 continues 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

Organization1: 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 beneficially 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 Generating 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 definition 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 ash 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 amount of CCR material.

According to the Proposed Effluent Guidelines (“ELG”) for the Steam Electric Power 
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Generating Category, the definition of Surface Impoundment is “A facility or part of a facility 

which is a natural topographic depression, man-made excavation, 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 injection 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 topographic 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 safety programs.

EPA Response: To the extent these comments are not considered “late comments” in 

accordance with statements in the NODA, EPA responds to these comments elsewhere in the 

rule preamble and comment response documents.

Comment Number: EPA-HQ-RCRA-2012-0028-0090-4

Organization1: 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 there 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.
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Comment Number: EPA-HQ-RCRA-2012-0028-0090-7

Organization1: 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 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’ 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 that 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 plans 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, regulatory 

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, which 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 

agency 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 greatly 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 analysis of the CCR will substantially 

affect the amount of time necessary to dewater the CCR, how stable it will be as a work surface 
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for construction equipment, and the ease with which it can be moved and contoured. Also, some 

CCR is more prone to erosion if 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 activity. 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 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 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 complete 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 ensure 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 occurring 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, construction 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.
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Comment Number: EPA-HQ-RCRA-2012-0028-0090-8

Organization1: 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 functioning 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-water 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 circumstances 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

Organization1: 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 CCRs 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, EPA 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 unit 
103

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 long 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 conditions, 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 and 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 plant 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

Organization1: 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 not 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 requested 

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 June 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 Energy 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 retrofit 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 impoundments should be allowed to remain open until the surface 

impoundment reaches its intended or permitted storage capacity of CCR. The impoundments 
104

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 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. [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 impoundment 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 of 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 owner 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 received CCR for the 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

Organization1: 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 operational 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 operate 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 the 
106

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 such 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

Organization1: 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 investigation 

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 permit, 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 impoundment 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 considerably. 

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 for 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 frequency 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 can lead to an extended schedule, and the existing 

impoundment cannot be closed until a new landfill is operational.
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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 landfill 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 additional 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 with 

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 impoundments 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 the 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

Organization1: 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 into 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 period 
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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 operator 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 Energy, 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 Information 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 continue 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 indefinitely. 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 diverting 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 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 plant operator has a 

reasonable belief that the impoundment or landfill may be needed to manage 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 the 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 be 
109

operating under 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 proposed 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 receipt 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 impoundments 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 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 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 in 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 management 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 long 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 common 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 this 
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temporary cessation of CCRs does not trigger closure requirements. After these 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 existing 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 land 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 to this comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2012-0028-0103-8

Organization1: 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 that 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 impoundment 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 disposal 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

Organization1: 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 than 
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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 that 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 of 

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 may 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 consider 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 years, 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 determined 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 for the facility is done under the supervision of a registered 
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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 

that 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

Organization1: 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 closure 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 inadequate.

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

Organization1: 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 of 
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impoundments and landfills receiving CCPs, EPA proposes initiation 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 use 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 for 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 initiation 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 material 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 material 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 potential 

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, dewatering 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 more 
114

about managing a valuable resource that provides enhanced environmental protection 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

Organization1: 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 facilities 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 

consistent 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 management 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 part 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 activities 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 the 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 generating 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 Generating 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 time 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 to
115

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 for 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 as 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

Organization1: 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

Organization1: 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 surrounding 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 to 
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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; site-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 timeframes 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.

Comment Number: EPA-HQ-RCRA-2012-0028-0057-5

Organization1: 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 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 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 Energy’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 scenarios 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 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 
117

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 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 manage 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 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 

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 

initiate 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 disposal 

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 CCRs 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 by 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, 
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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 cause 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 closure 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, may 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, 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 conditions 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 approval.

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

Organization1: 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 closure 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 a 
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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 

commenters’ 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 closure 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 were 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 be 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 both 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 

approach, 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 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. [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 

proceed 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 required 
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time 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 basis, 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, 

despite 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 affecting 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 safety 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 of 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 facilities 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 

establishing guidelines for closure, with the opportunity for an extension of time due to sitespecific 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 acres 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 judgments 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 to 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 operating 
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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 time. 

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 impossible, 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 either 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 

Company 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 presumption 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 these 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 time 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 of the preamble. 

Comment Number: EPA-HQ-RCRA-2012-0028-0059-5

Organization1: 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 footprint 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 could 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 undrained 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 

today). 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. See 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

Organization1: 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 required 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 precision 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 regulatory 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 required to conduct its closure activities in accordance with the closure plan and 
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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 

utility’s operating record. Under these circumstances, where a state reviews, approves, oversees, 

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.

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 compliance 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 utility 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 there 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, however, 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 option 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 to 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) (noting 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 impracticable, 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 affect the time it will take to 

close a surface impoundment or landfill. Assuming EPA adopts some form of a tiered approach 
124

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 

may 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 

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 

a state will certify that the closure is complete.

(b). Volume 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 impoundment 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 and 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 approximately 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 measures 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 respect to the potential of different fly ash types for static 
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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 phenomenon 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 Storage 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 in 

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 saturation, 

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 sitespecific geotechnical conditions. Rapid loading could 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 timelines, 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 available, 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 

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
126

The geology and previous uses of a site can play a significant role in the amount of time 

necessary to close an impoundment 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 

therefore 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 occur 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 

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 to wet-to-dry ash management, construction 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.

(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 dewatering 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

Organization1: Utility Solid Waste Activities Group (USWAG) [5A]

Commenter Type: Trade Association

Classification: NODA2 Substantive

Comment Excerpt Text:

EPA noticed two closure plans: (1) Coal Combustion Waste Impoundment Dam Assessment 
127

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 unforeseen 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 these 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 estimate 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 longer 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 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.

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 
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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 roughly 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 dewatering 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 utility 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 above, 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 closure, 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. Therefore, 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

Organization1: Utility Solid Waste Activities 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-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 member input and closure 
129

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 dewatered. 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 lengthens 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 explained 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 condition 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 that 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 closure 

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 needed 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) 

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 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 to 
130

readily revise 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 permitted 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 surface 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 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 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 complete 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, or

(2) In accordance with a closure plan certified by an independent professional engineer 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,
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(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 impoundment 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-2012-0028-0063-1

Organization1: 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 admittedly 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

Organization1: 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 surface impoundments and coal-fired powered plants in 
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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 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 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, cooling 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 proposed 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 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-2012-0028-0064-4

Organization1: 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 alone 
133

may well exceed 180 days. Other activities, such as geotechnical 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 

Environmental 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 structures, 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 

provide 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 appropriate 

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 landfills 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

Organization1: Basin Electric Power 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 promulgated, 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 the 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 closurerelated 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 frames.” [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 subfreezing 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

Organization1: 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 that 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 particular 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 certified 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

Organization1: 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 many 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 facilities 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. 

Factors 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 comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2012-0028-0067-13

Organization1: 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 the 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.

[See 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 closure 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 the 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 findings 

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” response, i.e., there were no substantial difference in the peak and postpeak 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 associated 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 layered 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 of 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 accurately 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 of 
137

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 

impoundment 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 loading 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 an 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 

Santamarina (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 closures 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 characteristics 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 function 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

Organization1: American Electric Power (AEP) [5FF]

Commenter Type: Electric Utility Company

Classification: 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 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 USEPA 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 particular facility can readily demonstrate that the time frames for that facility 
138

need to be readily adjusted to account for site-specific circumstances as set forth in a stateapproved 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

Organization1: American Electric Power (AEP) [5FF]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Excerpt Text:

• Act on USEPA’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 through 

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 takes 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 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 surface 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 

working days to construct 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 take 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 multiple 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 may need to close in the same time 

frame, there may be insufficient supply of ready-to-use clay. The proposed rules do not allow for 
139

any alternative liners, so selected clay must be used if the final rule does not change. Moreover, 

in some circumstances, states 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

Organization1: Consumers Energy 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 EPA 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

Organization1 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 varying 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 structural 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 

and 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 locality 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/landfill for closure. It is extremely difficult to cross 

some sites with large earthmoving equipment. Transportation models are available that can 
140

identify logistical constraints and provide an estimate of the impact of these constraints on the 

closure timetable.

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

Organization1: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 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 environmentally 

sound.

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

Comment Number: EPA-HQ-RCRA-2012-0028-0070-5

Organization1: 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 environmentally 

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

Organization1: Great River Energy (GRE) [5J]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive
141

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

Organization1: 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 ponded. 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 

unintended 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 partial 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 plant 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 of 
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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 

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.

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 utilities 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 change 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 closure 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

Organization1: 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 need 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 

water 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 unreasonably 

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 inappropriate when applied to wet 

impoundments.

• In addition, we believe coordination with both solid waste and water regulatory agencies allows 
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for site specific closure protective of the environment.

• A closure schedule should be governed by a state-approved 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

Organization1: National Rural Electric Cooperative Association (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 addressed 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 complications 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 stateauthorized 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

Organization1: Nebraska Public Power District (NPPD) [5N]

Commenter Type: Electric Utility Company

Classification: NODA2 Substantive

Comment Excerpt Text:

The Nebraska Public Power District is interested 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 closure 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 landfill 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 

information 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 began 
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implementation of the closure plan within 30 days of receipt of the final volume 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 Engineer, 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 permanent 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 responds to this comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2012-0028-0079-5

Organization1: 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 

technological 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 factors 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 implementation, 

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 sitespecific circumstances as set forth in a state-approved closure plan or a plan 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

Organization1: 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 are 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 

process 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 best 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 size 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 estimates 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, equipment/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 without 
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affecting the 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 replacement 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 these 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 elements 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

Organization1: 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, the 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 closure timeframe given the sitespecific 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 mechanism where a facility can account for an alternative closure timeframe based 

on site-specific criteria such as climate, geography, CCR management unit configuration, and 
147

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 variables 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, within 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 regulatory 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 prescribed 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 facilities 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 unit. 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

Organization1: 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 impoundments (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 frames 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” 
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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, the 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 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. 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; significant 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 flexible 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 activities, 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 

impoundments 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 the 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 

frequently 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. 

adequate dry disposal capacity may not be available in the proposed deadlines and the 
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construction demands of concurrently providing adequate dry disposal replacement capacity (and 

alternate wastewater systems) at multiple facilities would be very burdensome. Any 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, Dynegy 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 

reasonably 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 (subject 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” 

petition 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

Organization1: 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 defined 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 manufacturers 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 nationwide 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 impoundments 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

Organization1: Arizona Electric Power Cooperative, Inc. (AEPCO)

Commenter Type: Electric Utility Company
150

Classification: NODA2 Substantive

Comment Excerpt Text:

The closure time frames for CCR surface impoundments and landfills should not be a “one size” 

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

Organization1: 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-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.

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

Comment Number: EPA-HQ-RCRA-2012-0028-0091-3

Organization1: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 physical 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 existing 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, absent 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

Organization1: 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 larger 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 utilities 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 recommends 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 

completion 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 Energy 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 protect 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- cutter 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 and 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 

reporting, 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 NPDES 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 water protection issues once impoundments are removed from their intended 
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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 

impoundments. 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 ground 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 stability.

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 associated 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 closure 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 construction 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 stability 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 

and 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 depth 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-theart science on the 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 for 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. 
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Perciasepe on March 25, 2013 Docket No. EPA-HQ-RCRA-2009-0640.] EPRI 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 complete 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.

Closure 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 not 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 prevent 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 construction 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 freezing 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 

manufacturer 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 significant 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 structure 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 complete 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 liner 

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 considering 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 time 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.
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As discussed above, Duke Energy believes that the best 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 structure 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. They 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

Organization1: 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 following 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 NODA 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 approach, 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 tiered 

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 between 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 surface 
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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 comment in Unit VI.M.4 of the preamble.

Comment Number: EPA-HQ-RCRA-2012-0028-0100-1

Organization1: 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 proposed 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 as 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 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 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

Closure 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 times 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 dewater—depending on the facility and CCR mass, existing site and geologic 

conditions, weather, and site specific engineering measures.
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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. 

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 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 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 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 schedule, 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

Organization1: 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 document 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 associated 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 geotechnical 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 not 
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required to the same extent at typical dry landfills, may take several years each to complete. It is 

important to develop closure timelines that account 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 closure 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 closures, 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 geotechnical 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 Properties 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 adding 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 characteristics, 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 conditions. 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 to the engineering issues 

associated with dewatering and capping of CCR ponds. The report will include state-of-thepractice information on dewatering and capping of impounded materials, as well as design 

analyses for closure cap construction. Information on 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, time 
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frames can vary substantially 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 

characteristics 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 build 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 for 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 investigations 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 treatment 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 estimated 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) the 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 landfills. 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 considered. 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. Further, 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 sumps, 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 orders 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 Slopes

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 either 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 factor. 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 in the upstream end to a 
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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

Organization1: 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 potentially 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 unrealistic 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 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 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 closure 

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 stateapproved 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, oversees, 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 impoundment. 

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 implementation of clean closure. PPL is considering such an option at 
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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 plan 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 reflections 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 

factors 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, and 

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 Martins 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 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 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 its 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 closure 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 

need for an updated topographical survey, the bid process with contractors, and the development 
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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 regulatory 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

Organization1: PPL Services 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’ 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 that is both reasonable and protective of the environment, PPL continues to 

believe 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 unilaterally 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. Second, 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 will 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 impoundment 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 there 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-2012-0028-0106-2

Organization1: 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 Remaining 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 Inspection

DAYS: 28
164

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 itemized 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 Equipment

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

DAYS: 90

ACCUMULATED DAYS: 216

OPERATION: LDEQ Inspection
165

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 described 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 day 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

Organization1: 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 contains 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 and 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 documentation 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 been 
166

used in the solid waste containment industry, 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 

appropriate 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. This 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/superfund/sites/rods/fulltext/r0596296.pdf), TriCounty/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 solicits 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 issue, 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 the 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 geotechnical 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 study 
167

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://smithgardnerinc.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, Vancouver, 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 sites 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_reinforcement.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://keystoneswana.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. Finally, 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/northcarolina/2012/chapter-130a/article-9/section-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 

leakage 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 these comments in Unit M.3 of 

the preamble and elsewhere in the preamble.

Comment Number: EPA-HQ-RCRA-2012-0028-0071-1

Organization1: Great River Energy (GRE) [5J]

Commenter Type: Electric Utility Company
168

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 

under 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

Organization1: We Energies

Commenter Type: Electric Utility Company

Comment Excerpt Text:

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

Organization1: 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 alternatives 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 hazardous 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-based 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 KAR 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

Organization1: 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 impoundment 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 costprohibitive and unnecessary. 

On the 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 be 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 existing 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 top 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.] EPA 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 issues in Comment Response 

Document Volume 11.
170

Comment Number: EPA-HQ-RCRA-2009-0640-06410-63

Commenter1: 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

Organization1: 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 throughout 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 landfill 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 soil 

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

Organization1: 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 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.
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

Organization1: Kansas Department of Health and Environment [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 cm/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 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. The 

alternative final cover design must include:

(1) An infiltration layer that achieves an equivalent 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 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 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 would 
172

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-2009-0640-05798-1

Commenter1: 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 prescriptive 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 should 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 deliver 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

Organization1: 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

Organization1: 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:

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 various 

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 satisfied. [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. [Footnote 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 rather 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 achieved 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 inches 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, through 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 municipal 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) (emphasis 

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 process 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

Organization1: Earthjustice 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

Organization1: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 final cover designs for the RCRA Sub D part 257 rule for CCR landfills when States and 

EPA have yet to make such decisions for RCRA Sub D part 258 MSW landfills. Our suggestion 

is that alternative final covers, such as evapotranspiration covers or water balance covers, only be 

allowed in the context of an existing RD&D permitting action for the limited time periods and 

the reporting requirements required in 40 CFR 258 for MSW landfills, in States that have 

received RD&D permit authority under 40 CFR 258. 

EPA Response: EPA responds to this comment in Unit VI.M.3 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06424-13

Organization1: Garrett & Moore, Inc. [4G]

Commenter1: Bernie Garrett

Commenter Type: Other Company

Other Sections: 4.7 4.6.1.2 4.6.1.3 4.6.1.4 
175

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 50

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

Organization1: 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 could continue to operate for 

their remaining useful life, EPGA believes there will be some existing landfills and surface 
176

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.

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 landfills, 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 closed 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 installed. 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 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 hydrologist. 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 responds to this comment in Unit VI.M of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-41

Organization1: 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 cover 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 alternative 
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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 as data/info that demonstrate alternative cover designs would 

be protective (35209)

Comment Number: EPA-HQ-RCRA-2009-0640-03444-38

Organization1: 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 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 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. The 

alternative final cover design must include:

(1) An infiltration layer that achieves an equivalent 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 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 indefinitely 
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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

Organization1: 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 consider 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-sizefits-all conservative 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

Organization1: 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 impoundments 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 and 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.
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Comment Number: EPA-HQ-RCRA-2009-0640-06260-155

Organization1: 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, Section 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

Organization1: 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 require 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 negative 

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 in 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. This 
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design has been also permitted by the Department of Environmental and Natural Resources in 

North Carolina.

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 old 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 and 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 incorporate 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 is 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

Organization1: Dynegy Inc [4F]

Commenter Type: Electric Utility Company

Comment Excerpt Text:

EPA Should Confirm that Closure by Construction 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 impoundment 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 Subtitle 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 groundwater 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 new 
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landfill or surface impoundment on top of a former disposal unit. For example, while 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-inch 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 confirm 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 built 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

Organization1: 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 closed 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 environmentally 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

Organization1: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 designs 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 comply 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, as 
182

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

Organization1: 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. An 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 comment in Unit VI.M.3 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-56

Organization1: 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 encompassing 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 liquids into the landfill with the waste material. 

This offers additional potential avenues for demonstration of acceptable alternatives to standard 

cap and liner requirements.
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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 during 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 Assessment 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 water 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 liners 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 designed 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 subbituminous 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 (35209)

Comment Number: EPA-HQ-RCRA-2009-0640-06838-23

Organization1: 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 the final regulations.
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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

Organization1: 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 MSWLF 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 (BRRTS).

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

Comment Number: EPA-HQ-RCRA-2009-0640-06260-156

Organization1: 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 to 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 the 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 the landfill."

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

Comment Number: EPA-HQ-RCRA-2009-0640-06300-29

Organization1: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]
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 Environmental 

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 may 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 of 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 review 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 conditions (35209)

Comment Number: EPA-HQ-RCRA-2009-0640-06298-76

Organization1: 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

Organization1: Southern Company on behalf of itself and its four subsidiaries: Alabama Power 
186

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-specific 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 management 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 activities 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 period, 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 site-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 results 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

Organization1: 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 risks persist for centuries 

after CCR is placed in landfills. Therefore, regulations need to require on-going monitoring once 
187

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 such 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 as 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 increases, 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

Organization1: 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 Number: EPA-HQ-RCRA-2009-0640-06529-53

Organization1: NiSource Corporate Services [4I]

Commenter Type: Electric Utility Company
188

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 consistent 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

Organization1: 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

Organization1: 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 comment in Unit VI.M.9 of the preamble.
189

Comment Number: EPA-HQ-RCRA-2009-0640-09337-40

Organization1: 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

Organization1: We Energies [4WW]

Commenter Type: Electric Utility Company

Comment Excerpt Text:

COMMENT: The protective post-closure care time period is already defined under Wisconsin 

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

Organization1: 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 the 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

Organization1: Earthjustice 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 settlement 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 through 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 through 

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 conductivity 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 rate 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 in 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. Such 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 leakage 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 rates 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 thus, 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

Organization1: 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 

period, on p. 35209 of the preamble, includes a notification of state and inclusion in record and a 

request for comment on alternative methods that assure accountability. It is unrealistic to expect 

any owner to voluntarily extend the post-closure care period, and it is unacceptable for owners to 

decide for themselves to shorten it, without a formal review by regulatory agencies, either the 

States or EPA. This provision should either be dropped or be allowed only in the context of a 

review and approval mechanism by State regulatory agencies. The same should be applied to the 

suggestion for the provisions to increase flexibility, specifically allowing owners to self-certify 

the stoppage of leachate collection and other routine care items or to cease repairing disturbances 

of the final cover. 

EPA Response: EPA responds to this comment in Unit VI.M.9 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-06832-29

Organization1: 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 preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09337-43

Organization1: Arizona Department of Environmental Quality (ADEQ)

Commenter Type: State Government

Other Sections: 4.7 4.2.2 
192

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) Decreased 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

Organization1: 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 Statues 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

Organization1: Kentucky Department for Environmental 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

Organization1: Southern Company on behalf of itself and its four subsidiaries: Alabama Power 
193

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter Type: Electric Utility Company

Comment Excerpt Text:

Self-certified stoppage of leachate 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 demonstrate 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

Organization1: Earthjustice et. al.

Commenter Type: Advocacy Group

Comment Excerpt Text:

Self stoppage of leachate management 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, 

or 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 

leachate 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 or 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 

post-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

Organization1:Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter Type: State Government
194

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 unrealistic to expect 

any owner to voluntarily extend the post-closure care period, and it is unacceptable for owners to 

decide for themselves to shorten it, without a formal review by regulatory agencies, either the 

States or EPA. This provision should either be dropped or be allowed only in the context of a 

review and approval mechanism by State regulatory agencies. The same should be applied to the 

suggestion for the provisions to increase flexibility, specifically allowing owners to self-certify 

the stoppage of leachate collection and other routine care items or to cease repairing disturbances 

of the final cover. 

EPA Response: EPA responds to this comment in Unit VI.M.9 of the preamble.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-76

Organization1:Prairie 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 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. 

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

Organization1: 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 allowing CCR landfill owners to lengthen or shorten the post-closure care 

period, on p. 35209 of the preamble, includes a notification of state and inclusion in record and a 

request for comment on alternative methods that assure accountability. It is unrealistic to expect 

any owner to voluntarily extend the post-closure care period, and it is unacceptable for owners to 

decide for themselves to shorten it, without a formal review by regulatory agencies, either the 

States or EPA. This provision should either be dropped or be allowed only in the context of a 

review and approval mechanism by State regulatory agencies. The same should be applied to the 

suggestion for the provisions to increase flexibility, specifically allowing owners to self-certify 

the stoppage of leachate collection and other routine care items or to cease repairing disturbances 

of the final cover.

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

Organization1: Earthjustice et. al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Comment 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 site, 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.